Louisville Jeans Clothing Co. v. Lischkoff

• Decision Date: 05 February 1896
• Citation: 19 So. 436,109 Ala. 136
• Parties: LOUISVILLE JEANS CLOTHING CO. ET AL. v. LISCHKOFF.
• Court: Alabama Supreme Court

19 So. 436

109 Ala. 136

LOUISVILLE JEANS CLOTHING CO. ET AL. v. LISCHKOFF.

Supreme Court of Alabama

February 5, 1896

Appeal from circuit court, Tuscaloosa county; S. H. Spratt, Judge.

This action was brought by Sam Lischkoff against the Louisville Jeans Clothing Company and John Little, principal and surety on an attachment bond, for the breach of said bond, the plaintiff alleging in his complaint that the attachment had been wrongfully and vexatiously sued out. From a judgment for plaintiff, defendants appeal. Reversed.

The questions involved on the present appeal arose from rulings upon the evidence. The plaintiff introduced evidence tending to show that at the time of the suing out of the attachment he was engaged in the business of selling dry goods, shoes and clothing at wholesale and retail, his store being in the city of Tuscaloosa, Ala.; that at that time he had in his store a stock of goods the market value of which was $7,000 and there were solvent accounts due him amounting to $2,500 that the sheriff of Tuscaloosa county, Ala., under and by virtue of the writ of attachment issued at the instance of the defendants, levied upon and sold the plaintiff's entire stock of goods at the unreasonably small sum of $3,200; that the plaintiff had been merchandising in the same store in Tuscaloosa for about four years, and had not at any time sold any goods out of the ordinary course of trade, had made no fraudulent disposition of any goods whatsoever, and that no claims against him were due at the time of the suing out of said attachment; that he had paid all claims against him as the same fell due, that he had done nothing out of the usual course of business, and had been guilty of no act justifying said attachment; that plaintiff was damaged to the extent of the difference between the market value of his goods and the price they brought at sheriff's sale; that up to the time of the issue and levy of said attachment plaintiff's credit was good, that since said attachment his credit was totally destroyed, and he had since been unable to go into business on his own account. The defendants introduced evidence tending to show that the plaintiff was fraudulently disposing of considerable quantities of goods at less than the original cost. That within a short time many different accounts against plaintiff, amounting to near $7,400, would become due, and that he had not more than $5,200 of assets, this being the value of plaintiff's stock of goods as inventoried by the sheriff. That at the sheriff's sale said stock of goods sold well and brought their reasonable value. That one H. L. Zeibert, a Tuscaloosa merchant, was aiding plaintiff to defraud his creditors by secreting and disposing of plaintiff's goods, for which in many instances, no price was paid by Zeibert. The plaintiff, Sam Lischkoff, testified on direct examination that his stock of goods were worth in the Tuscaloosa market $7,000. Upon cross-examination defendants' counsel asked said witness the following question: "Did not the goods cost you, laid down here, 33 1/3 per cent. off from the $7,000?" Plaintiff's counsel objected to this question, the court sustained the objection, and to this ruling of the court the defendants duly excepted. Plaintiff testified that ever since he had been engaged in business in Tuscaloosa he had been selling goods in wholesale lots to one Wegranski, in Selma, Ala., and to a merchant in Meridian Miss., who was also a distant relative of the plaintiff. That for more than a year prior to the levy of the attachment he had been selling goods at wholesale to H. L. Zeibert, who was a merchant running a store at Tuscaloosa, and also a small store at Carbon Hill, Ala. Upon cross-examination, plaintiff was asked if he was making a profit of 33 1/3 per cent. upon the goods he was selling to relatives mentioned. Plaintiff's counsel objected to this question, which objection was sustained by the court, and to this ruling of the court the defendants then and there duly excepted. The attachment was sued out on the ground that plaintiff was fraudulently disposing of his property, and the evidence tended to show that W. C. Fitts, as agent and attorney for defendant, the Louisville Jeans Clothing Company, on various occasions, made inquiries of W. F. Fitts, Sr., and J. H. Fitts, who were the bankers of Lischkoff, plaintiff, in which he, W. C. Fitts, attorney, asked said persons if they knew anything about certain shipments of goods made by Lischkoff to one Wegranski of Selma and one _____ of Meridian, Miss., and asked if they knew of anything crooked about Lischkoff's business. The said persons told W. C. Fitts, that Lischkoff had to their knowledge been selling goods to said Wegranski and said _____ ever since he had been in business in Tuscaloosa, and that he had frequently drawn drafts through the bank of J. H. Fitts & Co. on said parties, and that the same had been paid. The plaintiff's counsel asked W. F. Fitts, Sr., if W. C. Fitts, as agent or attorney for defendants, had been talking with him about the creditors of Lischkoff attaching, or had made any inquiries of him about the plaintiff's business a short time before said attachment was sued out, and if so what inquiries were made, and what answers were made to such inquiries. This question was objected to by defendants' counsel on the ground that it called for immaterial, irrelevant and illegal testimony, which objection was overruled by the court, to which ruling of the court the defendants duly excepted. To this question W. F. Fitts, Sr., replied: "W. C. Fitts, as agent or attorney for defendants, did come and talk with me about the creditors of Lischkoff attaching him, and said he was representing some of the creditors, and that one of the reasons he thought Lischkoff was not acting squarely, was that he was making shipments of goods to one Wegranski of Selma and to one _____ in Meridian, Miss., and asked me if I knew of such shipments to these parties, and I told him I did, and that he had been making such shipments to said parties ever since he had been in business in Tuscaloosa." Defendants' counsel then moved to exclude this answer of the witness on the ground that the same was immaterial, irrelevant and illegal, which motion the court overruled and to which action of the court the defendants then and there duly excepted. W. F. Fitts, Sr., a witness for plaintiff, testified that he had been in the fire insurance business in Tuscaloosa for about 20 years; that he had frequently had occasion to estimate the value of stocks of goods such as the plaintiff's; that he was thoroughly familiar with the prices of such goods in Tuscaloosa; that he was present at the sheriff's sale of goods; that he was informed that the entire stock brought only $3,200; that this was a very low value for said goods. Upon cross-examination the witness was asked if he saw all the goods sold, and whether he knew their value and quantity. He answered: "I did not see all the goods sold. I know of my own knowledge what the goods brought while I was there and I know they were sold greatly below their market value. I know, too, that the entire stock was greatly sacrificed at $3,200, for the goods were worth a good deal more than that." Defendants' counsel moved to exclude this witness' testimony that...