Marx v. Strauss

• Decision Date: 09 April 1891
• Citation: 9 So. 818,93 Ala. 453
• Parties: MARX ET AL. v. STRAUSS ET AL.
• Court: Alabama Supreme Court

9 So. 818

93 Ala. 453

MARX ET AL. v. STRAUSS ET AL.

Supreme Court of Alabama

April 9, 1891

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Action by Marx Bros. against Leopold Strauss and others, as sureties upon the attachment bond of B. H. Claflin & Co., for breach thereof. Plaintiffs appeal. Reversed.

The complaint alleged that said Claflin & Co. sued out such attachment on the ground that plaintiffs were about fraudulently to dispose of their property. The evidence showed that L. M. Marx, a brother of plaintiffs, conducting mercantile business at Shubuta, Miss., had purchased goods of plaintiffs from time to time for about 10 years, but that shortly after the attachment he ceased doing business there. He testified that his reason for changing was because his wife objected to living in the country. One Jacobs, a witness for defendants, testified as to the price of goods sold to plaintiffs by the firm of Wallace, Elliott & Co., whose representative he was, and that one Sherman told him the price of certain goods bought by him from plaintiffs. Said Sherman was allowed to refresh his memory by means of an invoice of goods bought by him from plaintiffs, and to testify as to the price paid therefor. Judgment for defendants.

Gregory L. & H. T. Smith, for appellants.

Pillaus, Torrey & Hanaw, for appellees.

COLEMAN J.

Special averments are necessary to let in evidence for the recovery of special damages, but such special damages must be the natural and proximate result of the wrong, in order to authorize their recovery. The averments must also be of such character, if sustained by proof, as to furnish data from which the damages may be calculated with reasonable certainty. If the damages be speculative or too remote neither averment nor proof will authorize their recovery. Loss of credit and business are the natural consequences of suing out an attachment against a merchant on account of fraud, and may be averred in the complaint. Goldsmith v Picard, 27 Ala. 149; Donnell v. Jones, 13 Ala. 490; Flournoy v. Lyon, 70 Ala. 313. In the case of Pollock v. Gantt, 69 Ala. 378, it was held that "good or bad credit was a conclusion of fact partly based on opinion and judgment, founded more or less on reputation; that it was a collective fact, made up of many known ingredients; that a witness could speak of credit as a fact, and its extent, but not of its value in dollars and cents."

A merchant's general credit could not be established by proof that two or more named persons were willing to extend him credit; neither could it be shown that his credit was injured because simply two or three persons refused him credit. Business relations may be contracted or interrupted by many considerations not dependent upon the question of credit or ability to pay, and it would be unsafe to declare as a rule that the credit of a merchant or its loss was dependent upon his sustaining such a relation to two or three named customers. In the case from 69 Ala., supra, evidence was introduced that Gantt was a general merchant, and among his customers were timber-men whose trade he lost by reason of the attachment. This court held there were no averments in the complaint to authorize the introduction of such evidence, and, if there had been, the damages claimed on this account were too remote and speculative. The damages resulting from loss of credit, so that plaintiffs could not borrow money from Pollock & Co. or Levy & Co., were too remote and speculative, and there was no error in sustaining the demurrer to this part of the complaint.

Indebtedness, or even insolvency, alone will not justify the suing out of an attachment; but these questions sometimes become important in determining the bona fides of the disposition of goods, and, "if the question be one of fraud, whatever fact tends to show the good or bad faith of the party throughout the whole transaction is properly admissible in evidence." Durr v. Jackson, 59 Ala. 203. While plaintiff was a witness in his own behalf, on cross-examination, it was entirely competent for the defendants to interrogate him on material matters in regard to which he had testified in his deposition taken by defendants under the statute, authorizing the examination of parties. The defendants could not offer a part of the deposition in evidence without offering the whole, but the fact of having taken this deposition did not require the defendants to offer it in evidence, and the answer of the witness on cross-examination might determine the advantage or necessity for using the deposition in the trial. Code, § 2818. ^[1]

Portions of the testimony of the witness Glennon were objected to on the ground that it was "irrelevant and immaterial." We think it was both relevant and material to show the value of the goods attached; and an auctioneer, who had sold stocks of goods in Mobile for 20 years, was competent to testify that the goods of plaintiffs, sold by him at auction, brought a fair price under the circumstances. The extent of his knowledge of the character of the goods, and price at which they were sold, was a matter of cross-examination and argument to the jury. Bank v. Eborn, 84 Ala. 535, 4 South. Rep. 386.

It was competent to prove by the witness Scheurman, or Sherman, (the spelling occurs both ways in the bill of exceptions,) that he bought shoes from the plaintiffs, and, after refreshing his memory as he did as to the price paid, to testify to the price paid for them to plaintiffs. It was also competent for the witness to testify that he pointed these shoes out to the witness Jacobs. These are facts. It was also competent for the witness Jacobs to testify that he saw shoes in the store of Sherman, which were pointed out to him by Sherman, and he recognized and identified them as shoes sold by his firm to plaintiffs, and to further testify as to the cost price at which they were sold to plaintiffs. In this way the shoes could be identified, and the price paid by plaintiffs for them, and the price at which plaintiffs sold to Sherman, could be ascertained.

It was not competent to prove by the witness Sherman that he paid 80 cents for the shoes by a statement to that effect to Jacobs made in the absence of plaintiffs, and then to permit the witness Jacobs to testify to such a statement. A party cannot strengthen his own testimony by introducing evidence that he made the same statement at other times to different persons. Such evidence may be admissible to impeach or contradict, but not to corroborate. Assurance Co. v. Stoddard, 88 Ala. 614, 7 South. Rep. 379. If it was necessary, in order to fix in the mind of the witness Jacobs the particular lot of shoes interrogated about, to call his attention to the statement made at the time as to the price paid, for this purpose only such statement was...