Lederer v. Rosenthal

• Decision Date: 12 April 1898
• Citation: 99 Wis. 235,74 N.W. 971
• Parties: LEDERER ET AL. v. ROSENTHAL.
• Court: Wisconsin Supreme Court

99 Wis. 235

74 N.W. 971

LEDERER ET AL.

v.ROSENTHAL.

Supreme Court of Wisconsin.

April 12, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Alexander Lederer and others against Frederica Rosenthal. From an order denying defendant's motion to set aside the attachment issued therein, she appeals. Reversed.

The defendant appeals from an order made in this action by the circuit court, denying her motion to set aside and vacate the attachment issued therein, and continuing said attachment proceedings, and giving the plaintiffs leave to amend their affidavit for attachment by setting forth that a cause of action sounding in tort existed in favor of the plaintiffs against the defendant at the time of the commencement of the action and issuing of the writ. The parties are nonresidents. September 29, 1897, the plaintiffs began their action against the defendant, and, under attachment proceedings therein, seized a quantity of cloaks, capes, etc. The original affidavit for attachment was to the effect that the defendant was indebted to them in the sum of $1,304 upon express contract, and that the defendant was not a resident of this state. The undertaking for the writ was in the sum of $250 only, and was conditioned as in the case of a debt already due. It was not conditioned in three times the sum demanded, as required by the statute in case of a demand not yet due. Sanb. & B. Ann. St. § 2731, subd. 2. The verified complaint, as a cause of action, alleged the sale by the plaintiffs to the defendant of goods, wares, etc., at the agreed price of $1,303.28, July 1, 1897, upon a credit of 60 days. The verified bill of particulars of the plaintiffs' claim against the defendant, as set forth in their complaint, shows that the goods were sold on credit on various dates from July 7, 1897, to September 25, 1897, and that, of the entire amount, only $2.98 had become due prior to the commencement of this action, and that $1,300.30 was at that time not yet due. The complaint sets forth that the defendant solicited the plaintiffs to sell and deliver said goods to the defendant for $1,303.28, on a credit of 60 days, with a fraudulent design to cheat and defraud them, and, as an inducement to so sell said goods, represented that the defendant had assets of the value of $5,000, and was not indebted to any one for merchandise or borrowed money; that, relying on said representations, the plaintiffs sold and delivered said goods to the defendant at said prices; that said representations were in fact false and fraudulent, as the defendant well knew,--and further alleged that the defendant did not intend to pay for said goods, but to obtain the same by said means, and cheat and defraud the plaintiffs. Plaintiffs further alleged that, upon obtaining knowledge of the falsity of the representations, they elected to waive the contract, and to hold the defendant upon an implied promise, through and under the fraudulent transaction aforesaid, to respond to and pay the plaintiffs the aforesaid price of said goods so obtained by said defendant, and converted by her as aforesaid; and they conclude with a demand for judgment for $1,303.28. An amended or substituted affidavit for attachment was subsequently filed, and the only ground for the attachment alleged therein was the nonresidence of the defendant. In this affidavit it was alleged that the indebtedness was founded upon implied contract. Upon all the records and papers in the action, and particularly on the amended affidavit for the writ of attachment and undertaking annexed to said writ, the complaint in the action, and the bill of particulars served by plaintiffs, the defendant gave notice of a motion to vacate and discharge the writ of attachment on the ground that it appeared upon the face of the affidavit and undertaking in said attachment, and the complaint of the plaintiffs therein, and the bill of particulars served by plaintiffs, that the debt upon which the action was predicated was at the time not yet due, and that said undertaking was conditioned in the amount of $250 only as and for a debt due, and upon the ground that it appeared that it was not conditioned in three times the amount demanded, and the further ground that there was no valid ground for issuing the writ of attachment in the action. At the hearing the court ordered that the defendant's motion to vacate and discharge the writ of attachment be denied, and that the attachment proceedings be continued, and the plaintiffs have leave to amend their affidavit for attachment; setting forth that a cause of action, sounding in tort, existed in favor of the plaintiffs against the defendant at the time of the commencement of the action and the issuing of the writ. From this order the defendant appealed.

Charles L. Aarons, for appellant.

Bloodgood, Kemper & Bloodgood, for respondents.

PINNEY, J. (after stating the facts).

The amended or substituted affidavit for the attachment wholly failed to state any cause or ground for attachment for a debt not already due. The only ground alleged was the nonresidence of the defendant, which, in the case of a debt not already due, will not suffice. Sanb. & B. Ann. St. § 2731. The plaintiffs' duly verified complaint shows that the goods constituting the cause of their demand were sold July 1, 1897, on a credit of 60 days, and the original affidavit for attachment states that their said demand is founded on express contract. The verified bill of particulars...