Mobile Furniture Commission Co. v. Little

• Decision Date: 16 January 1896
• Citation: 19 So. 443,108 Ala. 399
• Parties: MOBILE FURNITURE COMMISSION CO. v. LITTLE ET AL.
• Court: Alabama Supreme Court

19 So. 443

108 Ala. 399

MOBILE FURNITURE COMMISSION CO. v. LITTLE ET AL.

Supreme Court of Alabama

January 16, 1896

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by the Mobile Furniture Commission Company against James W Little and another on a garnishment bond. There was a judgment for defendants, and plaintiff appeals. Reversed.

This action was brought by the appellant, the Mobile Furniture Commission Company, against the appellees, James W. Little and D. R. Burgess, as sureties on a garnishment bond, which was given by one William Prufrock for the purpose of suing out a writ of garnishment in aid of a summons and complaint in a suit by said Prufrock against the Mobile Furniture Commission Company, upon an account due from it to Prufrock for goods, wares and merchandise. The said William Prufrock is a resident of St. Louis, Mo., and sued out the writ of garnishment against certain insurance companies having insurance upon the Mobile Furniture Commission Company's stock of goods, which had just been damaged and partly destroyed by fire. On the trial of the case, it was shown that appellant was perfectly solvent when the garnishment writ was sued out; that it was then paying off and did pay all its creditors then existing, except Prufrock; that there was a dispute as to the amount actually due Prufrock appellant claiming a discount of 15 per cent. on a bill of goods purchased of Prufrock; that Prufrock and appellant had agreed that appellant's indebtedness should be liquidated in three payments, to be made on 17th March, April and May, 1894, but Prufrock testified that payment was to be on the 1st of said months; that appellant could not make payment of the March installment because of the damage sustained from the fire, and asked Prufrock for a little delay until its insurance money could be collected, when the amount due would be paid; that Prufrock refused this, and through his attorney demanded payment of the entire amount; that appellant offered to pay as agreed upon if the 15 per cent. discount was allowed; that Prufrock then wrote his attorney to allow the 15 per cent. but to "go on with the attachment;" that shortly after the garnishment writ was sued out Prufrock's attorney told appellant's president that the 15 per cent. discount had been allowed by Prufrock, whereupon appellant at once paid the whole amount due. Prufrock testified that his reasons for believing process of garnishment was necessary were, (a) that he had drawn several drafts for $65 each on plaintiff, which were not paid, which drafts were shown to have included $50 for a set neither ordered nor accepted by plaintiff, and payment for that reason refused; (b) that plaintiff did not meet said indebtedness when it first matured, and did not pay the said drafts drawn therefor; (c) that plaintiff failing to pay one-third of the debt on March 1, 1894, his agreement of extension was, therefore, at an end; (d) that he ascertained plaintiff's paid up capital was only $1,000; (e) that plaintiff had suffered loss by fire; (f) that he received "information" from Dun's Mercantile Agency and other parties, the nature of which information is not stated, and (g) that with all these facts before him he came to the conclusion that it was advisable to get his money as soon as he could.

There were many exceptions reserved by the plaintiff to the trial court's refusal to strike out certain portions of the testimony of the witness Prufrock, upon motion made by the plaintiff. These rulings of the court are made the bases of assignments of error on the present appeal, numbered from 1 to 5, inclusive; and following the order of such assignments of error, as referred to in the opinion, the portions of the testimony which the court refused to strike out, and to each of which refusals the plaintiff separately excepted, were as follows: (1) "At the time said action was commenced and said affidavit and bond made and said garnishment served, I did believe that process of garnishment was necessary to obtain satisfaction of my debt." (2) "I was not influenced either by malice nor vexatious spirit in having the garnishment issued." (3) "And was firm in the belief that it was necessary to have process of garnishment in order to obtain satisfaction of my debt." (4) "And cannot see how I damaged the said company to the extent claimed, or to any extent." (5) "I do not see how the garnishment could have hurt said company's credit and financial standing, as the record must show that the suit was of short duration, and was settled by said company paying the agreed sum of $323.73."

The plaintiff reserved separate exceptions to several portions of the court's general charge to the jury. To follow the assignments of error on the present appeal, referred to in the opinion, these separate portions of the court's general charge, the giving of each of which is made the basis of the assignments of error, are as follows: (6) "They say it has been broken in this: that that affidavit was false; that it was-well, generally, it says-that the affidavit was false in stating that they were indebted to Mr. Prufrock in the amount named, and that process of garnishment, or that he believes process of garnishment, necessary to obtain satisfaction of that debt." (7) "If the defendant in this case satisfies the jury that the Mobile Furniture Commission Co. was indebted to him as he alleges in his affidavit on that day, and that he believed process of garnishment necessary to obtain satisfaction of that debt, why, then the plaintiff cannot recover." (8) "In other words, the issuance of this garnishment must have been wrongful to entitle the plaintiff to recover in this suit, and to be wrongful, one or the other (either one) of these facts must have been wanting." (9) "If the party who took out the attachment, Prufrock, in this case, did not believe that garnishment was necessary to obtain satisfaction of the debt, then it was wrongful." (10) "If you should be satisfied upon the evidence, that the garnishment was wrongful, that is, that the debt did not exist, or that the party did not believe that it was necessary in order to collect his debt, then you would look further and see if was done maliciously or vexatiously." (11) "Now, then, I tell you that the two essential facts necessary to justify the issuance of the garnishment are this existing indebtedness for one, and the belief that such process was necessary to obtain satisfaction of the debt." (12) "I will tell you in addition to that, that the burden is on the plaintiff to make out his case; to show you that those two facts, that is, either one of those two facts, did not exist, and that they both must be established to your satisfaction, the nonexistence of those two essential facts, or either one of them." (13) "It is easy enough, I will say, to ascertain from evidence whether a debt exists. Parties can testify as to that. They can state figures. They can make a calculation and they are in possession of the facts, the parties to the suit. It is very difficult on the other hand to prove that a party did not think that it was necessary to take out this garnishment in order to obtain satisfaction of his debt." (14) "Nevertheless, it is necessary for that fact to be established unless they have established the other fact that the debt did not exist." (15) "I said that because some of the jurors might say that it is impossible to say what a man thinks, but I tell you, at the same time, it is necessary; it is one of the facts to be ascertained, but you can ascertain it from all the facts in the case if it exists, and unless you are satisfied that that affidavit of the party is false as to one of those two facts, the plaintiff cannot recover." (16) "Now the burden is also on the plaintiff to furnish to the jury the data from which they can ascertain with reasonable certainty the amount of damages to which he is entitled, and that really applies to actual damages and exemplary damages, if you should believe that he is entitled both to actual damages and exemplary damages."

The plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that the garnishment was wrongfully sued out, unless it was actually necessary in order to obtain satisfaction of Prufrock's debt when he would have obtained judgment upon it; if the evidence satisfies the jury that the garnishment was not necessary in order to obtain satisfaction of such judgment, they should find a verdict for the plaintiff, for the actual damages done it by the suing out of the garnishment, including any loss that the evidence may show that the plaintiff has sustained by injury to its credit, caused by the suing out of the garnishment, but the verdict should not exceed the amount of the bond sued upon; the fact, if it was a fact, that Prufrock...