Newell v. Whitwell
| Decision Date | 03 June 1895 |
| Citation | 40 P. 866,16 Mont. 243 |
| Parties | NEWELL et al. v. WHITWELL et al. |
| Court | Montana Supreme Court |
Appeal from district court, Flathead county; Dudley Du Bose, Judge.
Action by George R. Newell and others, doing business under the name of George R. Newell & Co., against F. R. Whitwell and another, doing business under the name of the Kalispell Mercantile Company. From an order dissolving an attachment plaintiffs appeal. Reversed.
Suit in attachment. On July 28, 1893, the appellants, merchants in Minneapolis, Minn., instituted suit against respondents merchants at Kalispell, Mont., to recover $4.016.40, due for goods sold and delivered, and for the sum of $950.55. to become due on September 11, 1893. Affidavit in attachment was made by plaintiffs' agent, in which it was alleged that defendants were about to dispose of their property for the purpose of defrauding their creditors. August 5, 1893 defendants moved to discharge the writ of attachment, on the grounds, substantially, that the affidavit failed to show that the sum charged for the goods was a reasonable, agreed or any value thereof; that when the suit was commenced the debt upon which it was instituted was not due; that the goods purchased by defendants, and for which the suit was brought were purchased upon time, as agreed upon by the parties, which time had not expired when the suit was instituted; and that the affidavit of plaintiffs was false and untrue. Other grounds were included in the motion, which it is not necessary to recite. To support that motion certain affidavits were filed by the defendants, denying any disposition of their property, other than in the usual course of business, and denying any fraud on their part, or any intended fraud. Upon August 19th plaintiffs filed an amended complaint, by leave of court, setting forth that between September 21, 1892, and June 5, 1893, defendants became indebted to plaintiffs for goods sold at the defendants' instance and request, between said dates, in the sum of $4,016.40; that all of said goods were sold and delivered by plaintiffs to defendants on a credit of 30 and 60 days, and that all goods sold after April 10, 1893, were sold on 30 days' credit. Plaintiffs further allege that between May 29 and June 11, 1893, defendants became indebted to them in the sum of $950.55 upon open account for goods sold between said dates; that on terms of conditional credit the said sum of $950.55 became due on September 11th, if the conditions under which the goods were sold did not transpire. The credit contract was as follows: "A conditional credit, as stipulated on the face of this invoice, will be allowed on this bill, provided that, should any suit or action at law be brought against, or any lien be given by, the purchaser named in said invoice, or if he shall assign, sell out, change, or retire from business, this bill shall at once become due and payable." Plaintiffs alleged that after the sale of the goods certain actions at law were commenced by various parties against defendants; that all these actions were brought before plaintiffs sued, by reason of which fact the said sum of $950.55 became immediately due and payable. An amended affidavit in attachment was filed, in which E. S. Johnson, as duly-authorized agent of plaintiffs, swore to the total indebtedness of defendants to plaintiffs in the sum of $4,966.95, upon an express and implied contract for the payment of money.
Upon August 19th, the defendants, in support of their motion to dissolve, filed their affidavits, substantially as follows: Defendants and plaintiffs agreed that plaintiffs would extend the defendants a line of credit to the amount of $5,000, and that no amounts owing to plaintiffs, excepting sums exceeding $5,000, should be due and payable; and as long as defendants continued to purchase goods from plaintiffs the $5,000 was not to be due and collectible, and, when they ceased to do business with plaintiffs, then the whole indebtedness was to be due and payable; and defendants, in consideration of that agreement, were to pay on all bills which were not paid at the end of 30 and 60 days from the date of the purchase, according to the class of goods purchased, 8 per cent. per annum thereon. As an exhibit to their affidavit, defendants filed and attached a letter of plaintiffs to defendants, dated February 4, 1893. The tenor of this letter to defendants is that plaintiffs, being informed by their agent that defendants desired to trade with them, and would require a credit of about $5,000, plaintiffs would be gald to accommodate them, and receive their business, charging defendants interest on their over-due accounts at the rate of 8 per cent. per annum. The letter continued: The affidavit of the defendants further stated that at the time of purchasing the goods no conditions on the back of the invoices or bills, or any other conditions thereon, were made part of the dealings between the parties, and that no contract, other than the one hereinbefore stated, was made between the parties; and that when this suit was instituted, and the attachment issued, none of the debts upon which it was brought were due and payable; that the affidavits of plaintiffs stating the bills and invoices of goods sold and delivered to defendants by plaintiffs, and the conditions that the debt was to become due and payable upon the institution of any other suit, or issuance of attachment, are not true, but false. Affiants attached certain bills and invoices delivered to defendants by plaintiffs, in which the credit condition did not appear; and affiants state that their attention was never called to any condition on the bills for the purchase of goods, or any other paper by which the debts sued for were to become due at any other time than as heretofore stated, and that the credit condition was not part of the negotiations between plaintiffs and defendants.
The invoices attached to defendants' affidavits were for various articles of merchandise, and are summarized as follows: May 29, 1893, terms 60 days, $376.44; July 11, 1893, terms 60 days, $262.61; April 22, 1893, terms 30 days, $335.79; April 29, 1893, terms 30 days, $407.91; April 29, 1893, terms 30 days, $172.20; May 29, 1893, terms 30 days, $22.95.
George R. Newell and Thomas P. Jumper, in behalf of plaintiffs, filed affidavits, denying specifically that such an arrangement in relation to the $5,000 credit, as sworn to by defendants, was ever contemplated or entered into, and denied that in the letter hereinbefore set forth such an arrangement ever was referred to or contemplated; and set forth that as a condition of extending to defendants the credit proposed and contemplated by said letter, defendants were required and expected to furnish the plaintiffs a property statement, but that defendants never furnished the plaintiffs any statement whatsoever; that there were continual dealings between the parties from September, 1892, to July 11, 1893; that some of the goods sold were for cash, without credit, but mostly on credit of 30 and 60 days, and that never were the defendants indebted to plaintiffs in the sum of $5,000, and that they continued to pay to plaintiffs money on their account, and made several payments of $500 each in May and June, 1893, and that at the time of the commencement of the suit there was owing and due at least $4,016.40 for goods sold and delivered prior to May 31, 1893; that the parties correspond with one another, and that such correspondence in its purport is inconsistent with the agreement claimed by the defendants. The affiants re-aver the conditional credit agreement, and set forth that while the plaintiffs were selling goods to the defendants they sent and delivered 37 invoices, under various dates, in all, or nearly all, of which the conditional credit agreement was written and printed. Attached to the plaintiffs' affidavit are letters by plaintiffs to defendants asking for moneys on account, and urging prompt remittances on account of hard times. One letter, dated May 5, 1893, states the amount of defendants' indebtedness to be $1,265, plaintiffs asking for $800 or $1,000. Another letter, of June 5, 1893, states their indebtedness to be $3,174.90; it asks for $1,000. Another letter, dated July 6, 1893, informs defendants that plaintiffs have drawn for $500. The letters of defendants to plaintiffs, also made part of plaintiffs' affidavit, ask for statements of account, and promise to send more money. One letter in particular, dated June 16, 1893, tells plaintiffs that they remitted plaintiffs $500 the day before, and will remit again in a few days, and asks plaintiffs not "to crowd defendants in the matter, and they will do all they can for them."
E. S Johnson, agent of the plaintiffs, swore by affidavit that he was familiar with the terms of credit given by plaintiffs to merchants in Montana; that he had examined all the bills and invoices of goods sold by plaintiffs to defendants, for which this suit was brought, and that there was but one item in all of said bills which was a credit of four months,--that was an item of $60.43, dated September 21, 1892; that all of said goods sued for in this action were sold on conditional credit of 60 and 30 days, except $950.55, where the conditional credit applied. He further states that on July 1st he was in Kalispell, and knew that suits and attachments had been instituted against defendants, and upon this information he acted by procuring counsel for plaintiffs. Affiant further denies any agreement between plaintiffs and defen...
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