Hundley v. Chadick

• Decision Date: 14 April 1896
• Citation: 109 Ala. 575,19 So. 845
• Parties: HUNDLEY ET AL. v. CHADICK. [1]
• Court: Alabama Supreme Court

19 So. 845

109 Ala. 575

HUNDLEY ET AL. v. CHADICK. ^[1]

Supreme Court of Alabama

April 14, 1896

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by Charles W. Chadick against Oscar R. Hundley and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

This was an action brought by the appellee, Charles W. Chadick against Rankin & Co., as principal and Oscar R. Hundley and Samuel H. Lowery as sureties on an attachment bond, to recover damages for the breach of said bond. On the hearing of the cause, the defendant, Rankin & Co., not having been served with process, on motion of the plaintiff they were stricken out as parties defendant. The complaint is in the ordinary form and alleges as a claim for special damages $100 for attorneys' fees, $160 for costs in the attachment suit, and $1,772 (the amount for which the bond was given), for loss sustained by injury to the plaintiff's credit and business. The attachment suit in which the bond was given was brought in the United States court at Huntsville on the 20th day of February, 1884, by Rankin & Co., a co-partnership composed of David P. Rankin and William P. Rankin. The defendants named in the affidavit bond and complaint, were described as "Chadick &amp Co." It appeared in the affidavit and other papers that the Rankins were citizens of the state of Tennessee, but it did not appear in the affidavit who Chadick & Co. were, or where they lived. The attachment bond which is here sued on was made payable to Chadick & Co. The writ of attachment was issued against Chadick & Co. on the next day, February 21 1884. It was levied on a stock of goods which were in the possession of Charles W. Chadick. On the 29th day of March, 1884, a complaint was filed in the attachment suit against Chadick & Co. in which it was alleged that "the defendants Chadick & Co. are residents and citizens of the state of Alabama, and of said Northern district of Alabama." The complaint does not state individual names of the defendant firm or any one of them. This attachment suit was prosecuted in the United States court to judgment, the judgment being $929.80 and costs, and the stock of goods levied on was sold by the United States marshal, and the proceeds of the sale applied to the payment of the judgment and the costs. The case was tried upon issue joined upon pleas denying all the material allegations of the complaint. The facts pertaining to the rulings of the court upon the evidence and upon the arguments of the counsel, to which exceptions were reserved, are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, among other things, instructed the jury as follows: (1) "That if they found for the plaintiffs that the measure of damages was the value of the goods at the time they were taken by the United States marshal." (2) "That if William G Jamar did not authorize the general use of his name as a member of the firm of Chadick & Co. and merely guarantied the payment of specific bills that this would not make him a partner or liable for other bills than those he guarantied." To each of these portions of the court's oral charge the defendants separately excepted, and also separately excepted to the court's refusal to give each of the following written charges which were excepted to by them: (1) "If the jury believe the evidence in this case they must find for the defendants." (2) "The suit on trial is only against the sureties on the attachment bond given by the Rankin & Co. If there was any abuse of the process of attachment these defendants are not liable for it. The value of the property levied upon is not the measure of damages in this case, because if an excessive levy was made by the marshal these defendants are not responsible for it." (3) "In plea No. 2 filed by the defendants they deny that any attachment bond was executed as alleged, payable to the plaintiff under the name of Chadick & Co. and aver that the attachment suit was brought against said firm. The plaintiff has joined issue on this plea. The defendants, without objection on the part of the plaintiff have offered oral evidence to prove that said suit was brought and said attachment was issued against the firm of Chadick & Co. If the jury find from the evidence that this contention of the defendants is true and that said attachment was issued against the said firm of Chadick & Co. and the bond made payable to them, their verdict must be for the defendants." (4) "If the jury believe the evidence in this case, Charles W. Chadick and William G. Jamar were partners in their relation to the wholesale merchants of whom Chadick & Co. obtained credit." (5) "If the jury believe from the evidence that Charles W. Chadick represented the merchants from whom he obtained credit, that William G. Jamar had allowed him the use of his name in order to obtain credit and was present when Chadick purchased goods, giving his opinion as to the purchase thereof, then Jamar and Chadick must be deemed as partners to such extent as would authorize an attachment against their firm property and plaintiff cannot recover in this cause." (6) "If Charles W. Chadick was doing business alone as Chadick & Co., he was entitled to have one thousand dollars of his property exempt from the levy and sale in the case of Rankin & Co. v. Chadick & Co. But if Chadick had a partner, he could not claim exemptions. The fact that he did not claim exemptions may be looked to as tending to show that he had a partner." (7) "If the jury believe from the evidence that Wm. G. Jamar allowed Chadick the unlimited use of his name for the purpose of purchasing goods in his mercantile business, this would make Jamar liable as a partner, and the plaintiff Chadick cannot recover in this cause." (8) "If the jury believe from the evidence that W. G. Jamar gave Charles W. Chadick the unlimited use of his name in order to obtain such credit in his business as he, Chadick, might desire, then Jamar would thereby become liable as a partner in the attachment suit, and the verdict must be for the defendants." (9) "The defendants are not confined in their evidence to prove the truth of the ground for the attachment, which they alleged in the affidavit in the attachment suit. If the evidence shows the existence at the time the attachment was sued out, of any ground which by law authorized the attachment, it is a good defense in this action. Under the law in this state a plaintiff can lawfully sue out an attachment when the defendant is about to remove his property out of the state, so that the plaintiff will probably lose his debt or have to sue for it in another state. If the jury find from the evidence that Chadick & Co. had removed or were about to remove sixty bales of cotton owned by them out of the state of Alabama and into the state of Ohio, and that they had not left in Alabama sufficient property to pay their debts, then this fact would authorize the suit of attachment, and the verdict of the jury should be for the defendants." (10) "An attachment can be lawfully sued out in this state when the defendant is about to remove out of the state. If the jury find from the evidence and under the instructions of the court given in reference to the law of partnership, that Jamar was as to Rankin & Co. a member of the firm of Chadick & Co. and that he was the only solvent member of such firm, then if the jury further find that said Jamar was about to remove out of the state and engage in business in the city of Louisville, Ky., or elsewhere, this fact would authorize the issuance of the attachment, and your verdict would be for the defendant." (11) "The plaintiff cannot recover in his action the value of that part of the goods levied upon which were sold and the proceeds used to pay the debt and interest of the judgment he owed Rankin & Co., for, if he recovered such sum he would recover that amount above actual damages." (12) "If the jury believe from the evidence that there were two attachments levied on the property, one in favor of Rankin & Co. and one in favor of Bransford & Co., even if the attachments were wrongfully sued out, the plaintiff can only recover for that portion of the property levied upon under the attachment in favor of Rankin & Co., and the burden of proof is upon the plaintiff to show that property was levied upon under said attachment in favor of Rankin & Co. and the value thereof." (13) "If Charles W. Chadick was doing business alone as Chadick & Co. he was entitled to have one thousand dollars of his property exempt from the levy and sale in the case of Rankin & Co. But if Chadick had a partner, he could not claim exemptions. The fact that he did not claim exemptions may be looked to as tending to show that he had a partner, and if he had a partner in interest in the goods levied on, the plaintiff cannot recover damages in this case." (14) "The attachment only authorized the marshal to levy on 'so much' of the property of the defendants in the attachment suit as would be sufficient to pay the debt of Rankin & Co. and the costs, and if the marshal levied on more property than was sufficient for this purpose the defendants are not liable for the property levied upon over this amount." (15) "Even if the jury believe from the evidence that the attachment was wrongfully sued out in estimating the actual damages sustained by the plaintiff, if they find the fact to be that the proceeds of the sale of the goods were credited and applied to the payments of the judgments rendered in favor of Rankin & Co. and Bransford & Co. they can only give their verdict for the value of the goods after deducting the amounts paid on said judgments." (16) "The measure of damages in a case like this is if plaintiff recover at all-actual...