Moore v. First Nat. Bank
| Decision Date | 15 December 1905 |
| Citation | 52 S.E. 944,140 N.C. 293 |
| Parties | MOORE v. FIRST NAT. BANK OF STATESVILLE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Alexander County; Webb, Judge.
Action by J. H. Moore against the First National Bank of Statesville and another. From a judgment in favor of defendants plaintiff appeals. Affirmed.
In an action for malicious attachment, the facts being admitted the question as to the existence of probable cause is one for the court.
Action for damages alleged to have been sustained by reason of suing out an attachment by defendant bank and George H. Brown, its cashier, against plaintiff's property, wrongfully maliciously, and without probable cause. A demurrer to the plaintiff's evidence was sustained by the court, and the action dismissed. Plaintiff appealed.
The facts developed upon plaintiff's evidence, in so far as they are material to the decision of the appeal, are: The defendant bank is a banking association duly organized pursuant to the national banking laws and was, at and before the date of the transactions set out in the complaint engaged in the banking business in the city of Statesville. The defendant Brown was, at said dates, cashier of said bank charged with the duties incident to his office. Plaintiff was, on the 5th day of June, 1903, and had been for some time prior thereto, indebted to defendant bank in the sum of $5,100. Said indebtedness was evidenced by several notes executed at different dates during the year 1901, and two notes during 1902, some of said notes running 30 days and some 90 days. Interest had been paid from time to time. Several of them were overdue on June 5, 1903. The defendant bank had no security to the said indebtedness. The bank had, during the year 1903, frequently urged the payment of the notes, but no payment had been made on them. Plaintiff was, in June, 1903, a resident of Liledoun, Alexander county. He was a physician, but was, at the date of the transactions referred to, engaged in operating a cotton mill, flourmill and farming, etc., conducting a store in connection with his mills. He owned June 5, 1903, a roller flourmill and cornmill at Hickory in Catawba county, known as the "Allspaugh Mills," also the Allspaugh farm of 287 acres, worth in all $8,000. He owned at Liledoun a cotton mill and other real estate, estimated to be worth $45,000. There was a mortgage on the Alexander property of about $2,500. He owned the Watts farm of 350 acres, upon which there was a mortgage of $2,500 for the purchase money. According to plaintiff's estimate, his property was worth at a forced sale, $53,000, and his indebtedness was $20,000. He was involved in a divorce suit with his wife, in which she was claiming alimony, and had filed a notice of lis pendens in the county of Alexander. There was evidence tending to show that plaintiff owned property in Kentucky of considerable value. He had in his mill at Liledoun $10,000 or $12,000 worth of ""duck goods," the product of his mill, which he had sold, and for which he had received New York exchange. Prior to June, 1903, plaintiff had kept an account depositing large sum of money in defendant bank, but had ceased to do so during the month of April. 1903, after which time the deposits did not amount to much. He was on June 5, 1903, solvent.
Plaintiff's litigation with his wife was giving him anxiety and annoyance. Motion was pending for further alimony pendente lite, $4,000 having been allowed and paid. The reason assigned by plaintiff for ceasing to keep his account with defendant bank was the fact that the attorney for the bank had been employed by his wife in her suit with him, and that he did not deem it safe to have his business known to them. On May 21, 1903, plaintiff sent to defendant Brown, cashier, a letter in which he stated that he felt he owed a duty to his creditors, he being one of them, to make a plain statement concerning his business, and to afford him the means of realizing the amount of his debt in full; that he (Brown) had trusted him, and he did not propose that he should lose a cent by reason of his confidence; that if he would take the prompt action, as he (plaintiff) suggested, he would sustain no loss; that prior to two years before this his business was on a firm basis, and he was making money; that his obligations were met promptly, and he looked forward with hope to a successful business future; that at that time his wife, from whom he had separated several years before, had returned from California and instituted suit against him on groundless charges; that he had been harassed by motions for alimony pendente lite, had paid her $4,000, besides costs and attorney's fees; that he had been unable to procure a trial of the case, and had exhausted every effort to obtain a reasonable settlement; that he had no assurance when the cause would be tried; that meanwhile she was clamoring for more alimony, and that costs and expenses were accumulating; that after July 1st another motion for alimony could be made, and he had no doubt that it would be; that it might result in another heavy financial loss to him; that he had lost heavily in sums actually paid out; that he had not been able to give to his business the proper attention; that he was indebted to the amount of $20,000, and had property enough to make every obligation good, saying: "But with the continuance of this suit, its heavy demands upon my time and resources, its disturbing and harrassing influence upon my mind, I fear that such will not be the case long." He stated that he wished to protect his creditors while he had the means with which to do so; that he did not wish to enter bankruptcy, because he was not a bankrupt; that if he left his creditors to sue, obtain judgment, and levy execution, and resort to other process, the assets would be consumed in court, etc. He proceeded to make a proposition to convey his property to two trustees--one selected by himself and one by his creditors--both to give bond, etc., to sell and pay his creditors. He requests the defendant to act promptly in the matter, signifying acceptance and taking the steps necessary to carry into effect his proposition. This letter was sent by plaintiff to his other creditors who were willing to accept his proposition. Some time during the months of February and March, 1903, plaintiff sold some horses, mules, and cattle, he sold other stock in May, and on the 18th day of said month sold his stock of goods for $3,300 for which he received $2,000 cash, and note for balance, leased his storehouse for two years, sold his growing crop cotton on hand, and shut down his mill. On or about May 26, 1903, plaintiff left his home, and went to the city of Cincinnati for the purpose of attending the sale of some property belonging to his children. He stated in Sunday school that he was going, and would be away some two or three weeks. He caused to be sent to his nephew, Mr. Payne, in Cincinnati, from the proceeds of his property sold, about $8,000, which was deposited in bank to his (Payne's) credit. This was not known to Brown on June 5, 1903. There was much testimony in regard to plaintiff's property and his movements subsequent to the issuing of the attachment.
Plaintiff introduced his son, Ernest V. Moore, who testified that he saw defendant Brown at Taylorsville two days prior to the date of the attachment. He testified as follows in regard to conversation with defendant: "I came up on the train from Statesville; had been to Hickory. I got into a buggy was about to drive away, when I saw Mr. Brown. I had the buggy stopped. Mr. Brown spoke to me, and shook hands with me, and made some remark; asked where my father was. Told him that my father was out of town, and he made the remark that he wished to see me. I got out of the buggy, and went back to the Campbell boarding house. Mr. Brown asked me again, I think, where my father was, and I told him he was in Cincinnati. He told me that a report had come to him of the sale of certain property. I told him that Mr. Deal could give him all the information regarding that property, and that he could see him at the mill. We secured a buggy, and at his request drove to the mill, about three miles. On our way out we talked about the situation. He explained that the money had been loaned by the bank, and that he was very anxious about it. I told him that I realized that, and also that he need have no anxiety concerning it; that we were immediately expecting a trial of the divorce proceedings then pending; that a special term of court had been ordered by the Governor in Catawba county for the purpose of trying this case, and it would come up in July--1st of July; and that the case would then unquestionably be settled. Explained to him that he had practically exhausted his credit on the property on account of these divorce proceedings, and that at the present time it was impossible for us to make payment of the notes then due or about to be due. He seemed to be very well satisfied with what I had said, and when he reached the mill he made inquiry concerning the insurance on the property. I told him my impression was it was insured for $40,000. We made search for the policies and found several; but all the policies which we were able to locate were old policies and had been canceled. Mr. Brown seemed very anxious about it, and wished to know definitely about it, and I told him that the only way I could find out was to write my father, which I promised to do and let him know immediately I heard. He then requested me to take him through the cotton mill. He examined the machinery thoroughly, and made notes of some sort, and questioned me as to the price of it. I informed him that the mill originally cost between $40,000 and $50,000,...
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