Smith v. Kaufman

• Decision Date: 12 November 1891
• Citation: 94 Ala. 364,10 So. 229
• Parties: SMITH ET AL. v. KAUFMAN.
• Court: Alabama Supreme Court

10 So. 229

94 Ala. 364

SMITH ET AL. v. KAUFMAN.

Supreme Court of Alabama

November 12, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge. Reversed.

This was an action of trespass brought by S. Kaufman against J. S Smith, sheriff, and his sureties, to recover damages for trespass committed by said Smith by the alleged wrongful levy of an attachment upon the goods of the plaintiff. The defendant pleaded the general issue; that the goods did not belong to the plaintiff, but belonged to the defendant in attachment; that the defendant was sheriff; and that the other defendants, who were sureties, did not commit the trespass complained of. The evidence showed that the attachment was issued against one Jacob Bandman at the suit of creditors of said Bandman, and upon being placed in the hands on one J. H. Sharp, deputy-sheriff, was levied upon the goods which were in the store formerly occupied by said Bandman. It was further shown that Bandman had been in the mercantile business in Birmingham, and had sold his entire stock of goods, furniture, good-will, and license for cash to the plaintiff, Kaufman; that Kaufman went into immediate possession of the goods, and employed said Bandman as clerk for one or two months; and that at the time of the levy of the attachment Kaufman was in possession of and owner of the said goods, and Bandman was in the store as a clerk. The testimony of Bandman, among other things, tended to show that before the purchase he and Kaufman made an inventory of the goods in the store, and used, in making said inventory, bills and statements sent to Bandman by his creditors, and that these bills showed that the goods were bought and shipped on time or on credit. At the request of the plaintiff, in writing, the court gave the following charges: (1) "The court charges the jury that courts will not strive to force conclusions of fraud, and, if the facts and circumstances in evidence relied on to sustain the charge of fraud are fairly susceptible of an honest intent, that construction will be placed upon them." (2) "The court charges the jury that, if the plaintiff's goods were wrongfully levied upon, the law would not require the plaintiff to give a claim-bond, and have a trial of the right of the property in the goods levied on, but the law gave him the choice to allow the goods to be carried away, and, if the levy should be wrongful, to bring such an action as the present case, and secure damages for such wrongful act." The defendants duly excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following charges requested by them in writing (1) "If the jury believe from the evidence that the plaintiff said to Sharp before he made any levy on the goods and before Sharp had taken the goods into his possession, to 'go ahead and make the levy on the goods,' and that Sharp then proceeded to make the levy in this case, in pursuance to what the plaintiff told him to do, then I charge you, as this is a case of trespass, the plaintiff cannot recover in this action, and your verdict must be for defendants." (5) "If the jury believe from the evidence that the plaintiff, while negotiating for the purchase of said goods from the said Bandman, had access to and did see said bills, showed that said goods had been purchased on credit, that such knowledge was sufficient to put the plaintiff on inquiry as to the solvency of the said Bandman, and, if proper inquiry would have disclosed the insolvency of the said Bandman, then your verdict must be for defendant." (6) "That if the jury believe from the evidence that plaintiff knew that Bandman had...