Jefferson County Sav. Bank v. Eborn

• Decision Date: 29 May 1888
• Citation: Jefferson County Sav. Bank v. Eborn, 4 So. 386, 84 Ala. 529 (Ala. 1888)
• Parties: JEFFERSON COUNTY SAV. BANK ET AL. v. EBORN.
• Court: Alabama Supreme Court

4 So. 386

84 Ala. 529

JEFFERSON COUNTY SAV. BANK ET AL. v. EBORN.

Supreme Court of Alabama

May 29, 1888

Appeal from city court of Birmingham.

This was an action brought by the appellee, B. F. Eborn, against the appellants, the Jefferson County Savings Bank and others to recover both actual and punitive damages for the wrongful and vexatious suing out of an attachment by the defendant corporation against the said Eborn.There was a demurrer to the complaint on several grounds.The first three grounds of demurrer are shown by the opinion.The other grounds were as follows: " Fourth.That it is no cause of action against these defendants that the sheriff sold the goods levied upon in quantity, and not in detail, as set forth in the first specification under the third assignment of breach of condition of bond in the complaint.Fifth.That the ground of damage in said first specification is speculative and conjectural, and not the proximate result of the wrongful or vexatious suing out of said attachment."" Seventh.That the grounds of damages set forth in the fifth specification of damages under the third assignment of breach of the condition of said attachment bond, to-wit, that by said attachment plaintiff was prevented from making a settlement with his creditors, by paying them with the goods, is speculative and conjectural, and is not ground of action against these defendants.Eighth.That the seizure of said stock of goods under a writ of detinue set forth in the complaint is no ground of action or of damages in a suit upon the attachment bond."The court overruled all of these grounds of demurrer, and the defendants excepted.Issue was then joined on the pleas of the defendants, which set up the general issue, and specially of not having sued out the attachment wrongfully and vexatiously, and that the goods were seized, under a writ in detinue, on account of the defendants' rights therein given them under the power of a bill of sale made to them by the plaintiff.On the trial plaintiff first introduced in evidence the writ of detinue which was issued and levied on the goods on the 15th of September, 1886, and also the sheriff's return thereon and also showed that the same had been dismissed.There was then evidence to show that the defendants, after dismissing the detinue suit, instituted the attachment proceedings.The plaintiff offered to prove that, at the time the attachment was levied on his stock of goods, he had a sufficient quantity of goods in his store to pay off all of his indebtedness, and then offered to prove this by stating the amount of profits he had made on the goods sold, and in this way approximating the amount of goods he then had on hand.The defendants objected to this mode of proving the quantity of goods in the plaintiff's store, but the court overruled their objection, and they excepted.Upon the plaintiff, as witness, being asked "if he did not offer to settle with the bank;""and, if so, at what offer did he make,"the defendants objected to this question, but the court overruled their objection, and allowed the plaintiff to answer the question; whereupon the defendants excepted.The plaintiff undertook to prove that the return of the sheriff of the goods seized by him under the writ of attachment was not complete, and did not contain all the goods levied on by him.The defendants objected on the ground that the written return of the sheriff was conclusive as to the goods so levied on; but the court overruled the objection of the defendants, and allowed the plaintiff to testify as to the goods not so contained in the return of the sheriff, and the defendants excepted.In attempting to prove the value of the goods levied on, there was some conflict, and upon the deputy-sheriff, Brown, who was examined as a witness, being asked to state the value of the goods levied on, under the circumstances as shown in the opinion, the defendants objected to this evidence by the witness Brown; but the court overruled their objection, and they excepted.It was proved that when the plaintiff gave the bill of sale to the defendants, upon which the detinue suit was instituted, and which witnessed the indebtedness which was the foundation of the attachment, he was indebted to his mother in a large amount; and that before the attachment was levied, and before the goods were seized under the writ or detinue, (just a very short time before,)he made a bill of sale to a part of his goods to his mother.The court charged the jury, among other things, as follows: (1)"If you find that the plaintiff owed his mother a bona fide debt pre-existing, and he transferred the goods to her, in payment of such debt, by an absolute sale at a fair price and in quantity not more than enough to pay her debt, then the transaction was not fraudulent, and it does not matter with what intent he did so, nor with what intent his mother received the goods; and in that cause, if there was no other cause for suing the attachment, then it was wrongfully sued out, and the plaintiff would be entitled to recover."(2)"If you find that the plaintiff owed his mother a bona fide pre-existing debt, and paid her in goods by an absolute sale at a fair price, and in quantity not more than enough to pay the debt, the mere fact that the plaintiff paid his mother in goods on which the defendant bank had a mortgage was not a fraud authorizing the defendantJefferson County Savings Bank to sue out an attachment."(3)"That corporations, although they act by agents, may be subjected to punitive damages."To each of these charges given by the courtthe defendants separately and severally excepted.At the request of the plaintiff, the court gave the following charge, which was in writing: "Although the jury believe that B. F. Eborn had executed a bill of sale, as mortgage security, to the Jefferson County Savings Bank, upon the stock of goods prior to the 15th September, 1886, and was permitted by the bank to remain in possession and sell said goods, [this] would not render a sale of goods by him in payment of a bona fide debt to a creditor, at a fair price, fraudulent, so as to justify an attachment against him."The defendant excepted to the giving of this charge; and then asked the court to give the following charges, which were in writing, and duly excepted to the court's refusal to give each of them: (2)"That if, from the evidence, the jury believe, after the making of said bill of sale, the plaintiff added other goods to his stock covered by said bill of sale, not separating the new from the old, but mixing them so the mortgagee or the bank could not distinguish them, then the Jefferson County Savings Bank would be entitled to seize the goods, under its bill of sale, without being a trespasser."(3)"That if the jury believe that the said bill of sale covered or was upon the goods that the plaintiff, Eborn, by his bill of sale to his mother, conveyed and sold to her, and if the jury believe that the said Eborn, by the sale of said goods so mortgaged, did so for the purpose of hindering, delaying, and defrauding the Jefferson County Savings Bank or other person, then there was ground for the suing out of the attachment; and the levy of the attachment on the stock of goods was not wrongful, and the jury must find for the defendants."(4)"That in this case, if the jury believe from the evidence that said Eborn disposed of his said goods with the intent to defraud any creditor, then the levy of the attachment upon said stock of goods was not wrongful, and the plaintiff cannot recover, and the verdict must be for the defendants."(6)"That, in considering the question whether the sale of goods mentioned in the...