Richards v. Jewett Bros. & Co.

• Decision Date: 20 December 1902
• Citation: 92 N.W. 689,118 Iowa 629
• Court: Iowa Supreme Court
• Parties: RICHARDS v. JEWETT BROS. & CO. ET AL.

118 Iowa 629

92 N.W. 689

RICHARDS

v.JEWETT BROS. & CO. ET AL.

Supreme Court of Iowa.

Dec. 20, 1902.

Appeal from district court, O'Brien county; G. W. Wakefield, Judge.

Action at law to recover damages for malicious attachment. Verdict and judgment for the plaintiff. The defendants appeal. Reversed.E. C. Herrick, for appellants.

Milt. H. Allen, for appellee.

SHERWIN, J.

This is not the statutory action upon the attachment bond, but an independent one, alleging want of probable cause and malice; and, to entitle the plaintiff to a recovery, he must establish both of these propositions. Tallant v. Gaslight Co., 36 Iowa, 262;Carraher v. Allen, 112 Iowa, 168, 83 N. W. 902;Frantz v. Hanford, 87 Iowa, 469, 54 N. W. 474. In the fall of 1897 the plaintiff bought a small stock of goods at a public sale, paying about one-half of the price in cash. He opened a store in Sheldon, and put it in charge of another, while he continued in his vocation as a traveling salesman for a Chicago wholesale house; spending only a small portion of his time in Sheldon, but being there generally over Sunday. On the 24th of December he placed his store and business in charge of a lawyer living in Sheldon, and left for a social and business visit in Wisconsin and Illinois. At this time he owed $500 on the purchase price of his original stock of goods, and from $800 to $1,000 to his general creditors, among whom were these defendants. About the middle of December the stock he then had invoiced about $2,000. The attachment was levied on the 3d of January following, and on the 10th of that month the stock invoiced $1,300. Between the 13th of October and the 24th of December, 1897, the defendants sold and delivered to the plaintiff goods of the aggregate value of $177.20, and had credited him on the account $1.82 for goods and empty boxes returned. The balance of the account was due and unpaid at the time of the attachment. The defendants had a branch wholesale house in Sheldon, in charge of a manager. They also kept a creditman there, whose business and duty it was to know the financial standing and condition of their customers, and to look after their accounts; and the evidence shows that Mr. Clay, the defendants' creditman, knew approximately the amount of the plaintiff's indebtedness, and knew who some of his creditors were, other than the defendants. Soon after the plaintiff left, the defendants learned that a lawyer was in charge of his store, and, upon investigation, were told that the plaintiff had left for a visit, and that he expected to return in the course of a few days. On the 22d of December the owner of the claim for unpaid purchase money was given a mortgage on the plaintiff's entire stock to secure his claim, with the understanding between them that it was to be withheld from record until the plaintiff returned from his visit unless it became necessary to sooner record it to protect the mortgagee; and by agreement the mortgage was left in the hands of the lawyer, who was to have and did have charge of the stock during the plaintiff's absence. The day after the plaintiff left, the party in charge of the store denied the execution of any mortgage. During the 10 days following, the defendants were watching the situation closely, and attempting to get some money or goods to apply on their claim, or some...