Taylor v. Fluharty

Decision Date01 August 1922
Citation208 P. 866,35 Idaho 705
CourtIdaho Supreme Court
PartiesM. D. TAYLOR, Doing Business as IDAHO FOUNDRY & MACHINE COMPANY, Respondent, v. H. M. FLUHARTY and L. W. BISHOP, Appellants


1. Under the provisions of C. S., sec. 5887, and according to the law-merchant of which the statute is declaratory, any official designation added to the name of one signing a promissory note is merely descriptio personae and does not of itself relieve the party so signing from personal liability.

2. Where one signs a promissory note as agent for another, the prima facie presumption is that the words are merely descriptio personae, and that the one so signing is personally bound, yet evidence is admissible in an action between the original parties to show that it was not so intended, and that in fact the real intention was to bind the principal whose name was disclosed upon the face of the instrument.

3. C S., sec. 5887, is not to be taken as changing the common-law rule permitting the consideration of a negotiable instrument the capacity in which it was signed and the conditions under which it was delivered to be shown as between the original parties and those having knowledge of the facts relied upon to constitute a defense.

4. Where a promissory note is written upon the letter-head of "Smith Manufacturing and Irrigating Co." and signed by five persons with the words "president," "vice-president," "treasurer," "secretary," and "director" appended to the signatures, respectively, with the seal of the corporation to the left of such signatures, held, that an ambiguity arises as to the capacity in which the makers have signed, for which a resort to parol evidence is admissible as between the original parties to the note, to determine their actual intention.

5. The term "wrongful" within the purview of C. S., sec 6781, relates to the issuance of an attachment upon a cause of action not included in C. S., sec. 6779, or where the statements in the affidavit are false, and not to mere irregularities in the attachment papers themselves, even though the attachment has been dissolved because the proceedings have been defective.

6. Clerical errors or irregularities committed in the preparation of attachment papers do not render the plaintiff on attachment proceedings liable in damages for wrongful attachment.

7. Loss of time incident to defending an attachment which is afterward dissolved is not a recoverable element of damages neither is interest upon an attached bank account, during the time such account is subject to the attachment.

8. Held, that appellant failed to prove any of the material allegations of his cross-complaint, and that there was a total lack of evidence to support a judgment in his favor, either for general or special damages.

9. Held, that the evidence in this case is not sufficient to support a judgment for malicious attachment without probable cause, or for a wrongful attachment within the purview of C. S., sec. 6781, for which the bond would be liable.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action upon a promissory note. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs awarded to appellant.

Benjamin F. Tweedy and Otto D. Burns, for Appellants.

In Idaho there seems to be no difference as to the effect and validity of a writ of attachment, or as to its rightfulness or wrongfulness between an insufficient and a false affidavit, for in either case the writ is issued without jurisdiction and therefore wrongfully issued. (Murphy v. Montandon, 3 Idaho 325, 35 Am. St. 279, 29 P. 851; Merchants' Nat. Bank v. Buisseret, 15 Cal.App. 444, 115 P. 58; Kerns v. McAulay, 8 Idaho 558, 69 P. 539; Pajaro Valley Bank v. Scurich, 7 Cal.App. 732, 95 P. 911.)

A writ of attachment issued for a greater amount than that stated in the attachment affidavit is void, and on motion must be dissolved. (Finch v. McVean, 6 Cal.App. 272, 91 P. 1019; Baldwin v. Napa & Sonoma Wine Co., 137 Cal. 646, 70 P. 732; De Leonis v. Etchepare, 120 Cal. 407, 52 P. 718.)

"When an attachment is for any reason void, attachment plaintiff will be a trespasser ab initio and liable to attachment defendant for any damages resulting therefrom." (6 C. J. 494; Shinn, Attachment and Garnish., sec. 8, pp. 10 and 11.)

The attachment defendant has a right to recover for the value of the time used in consulting and employing his lawyer, and time otherwise devoted to the matter of getting the attachment dissolved and set aside. (Tullis v. McClary, 128 Iowa 493, 104 N.W. 505; Higgins v. Mansfield, 62 Ala. 267.)

Long before adoption of the statute, the placing of the corporate seal where it stamps the name of the corporation upon a note was such a complete disclosure of the principal, where there were words following the names of individuals, describing them as officers of a corporation, that the note became exclusively the obligation of the corporation. (Means v. Swormstedt, 32 Ind. 87, 2 Am. Rep. 330; Miller v. Roach, 150 Mass. 140, 22 N.E. 634, 6 L. R. A. 71; Hovey v. Magill, 2 Conn. 680; 1 Par. Con., sec. 97; Angell & Ames on Corp., sec. 294; Story, Prom. Notes, sec. 69; New England Electric Co. v. Shook, 27 Colo. App. 30, 145 P. 1002.)

"If there is sufficient appearing on the face to make it doubtful whether it was intended as a personal or as a corporate obligation, parol evidence is admissible to show its true character." (Tiedeman on Commercial Paper, sec. 123, p. 197; Pratt v. Beaupre, 13 Minn. 187, 190; Devendorf v. West Virginia Oil & O. L. Co., 17 W.Va. 135; Richmond etc. R. Co. v. Snead, 19 Gratt. (Va.) 354, 100 Am. Dec. 670; McClellan v. Reynolds, 49 Mo. 312, 314; Hager v. Rice, 4 Colo. 90, 94, 34 Am. Rep. 68; Mechanics' Bank v. Bank of Columbia, 5 Wheat. (U.S.) 326, 337, 5 L. ed., 100.)

Parol evidence is admissible where there is ambiguity to show that the person signing by representative description is not personally liable on the note. (Bean v. Pioneer Min. Co., 66 Cal. 451, 56 Am. Rep. 106, 6 P. 86; Kline v. Bank of Tescott, 50 Kan. 91, 34 Am. St. 107, 31 P. 688, 18 L. R. A. 533; Keidan v. Winegar, 95 Mich. 430, 54 N.W. 901, 20 L. R. A. 705; Deering v. Thom, 29 Minn. 120, 12 N.W. 350; Janes v. Citizens' Bank of North Enid, 9 Okla. 546, 60 P. 290; Small v. Elliott, 12 S.D. 570, 76 Am. St. 630, 82 N.W. 92.)

Parol evidence is admissible to charge a principal ambiguously indicated, and that it was the entire intention to charge only the principal ambiguously indicated. (Benham v. Smith, 53 Kan. 495, 36 P. 997; Southern P. Co. v. Von Schmidt Dredge Co., 118 Cal. 368, 50 P. 650; Miller v. Way, 5 S.D. 468, 59 N.W. 467.)

Since the instant action is between the original parties to the note, parol evidence as offered was admissible beyond all doubt. (Metcalf v. Williams, 104 U.S. 93, 26 L.Ed. 665; Kean v. Davis, 21 N.J.L. 683, 47 Am. Dec. 182; Hicks v. Hinde, 9 Barb. (N. Y.) 528; Dessau v. Bours, 1 McAll. 20, F. Cas. No. 3825; La Salle Nat. Bank v. Tolu Rock etc. Co., 14 Ill.App. 141.)

The word "wrongfully," as used in the statute, means that the writ was not lawfully issued; "that the act was done in violation of right or without authority of law." (State v. Nease, 46 Ore. 433, 80 P. 897.)

Daniel Needham, S. O. Tannahill and R. D. Leeper, for Respondent.

The word "wrongful" in the statute refers to a violation of sec. 6779 by the attachment plaintiff; that the attachment was issued upon a cause of action not included in that section; or that the statements in the affidavit are false. It does not include within its purview mere "irregularities" in the attachment papers. (6 C. J. 498, par. 1177.)

A dissolution for defects in the affidavit does not of itself give an action for wrongful attachment. (Sharpe v. Hunter, 16 Ala. 765; Boatwright v. Stewart, 37 Ark. 614; Petty v. Lang, 81 Tex. 238, 16 S.W. 999; Baines v. Ullman, 71 Tex. 529, 9 S.W. 543; Jandt v. Deranleau, 57 Neb. 497, 78 N.W. 22.)

"The mere fact that an attachment was quashed does not justify a finding that it was wrongfully issued and levied." ( Rowe v. Crutchfield (Tex. Civ.), 168 S.W. 444.)

"Loss of time incident to defending against the attachment is not an element of damages." (Craddock v. Goodwin, 54 Tex. 578; Lang v. Fritz (Tex.), 38 S.W. 233.)

"Interest is not recoverable as damages." (Perston v. Slocomb, 1 La. Ann. 382; Addison v. Sujette, 60 S.C. 58, 38 S.E. 229; Fullerton Lumber Co. v. Spencer, 81 Iowa 549, 46 N.W. 1058.)

Counsel fees for the defense of the principal action cannot be claimed as damages. (Moseley v. Fidelity Deposit Co., 33 Idaho 37, 189 P. 862; 6 C. J. 545, sec. 1335.)

"A note in the form 'We promise to pay,' signed by officers of a corporation, to whose names are added their respective official titles, is prima facie their individual note and binds them personally, although the name of the corporation is printed in the margin or caption thereof." (8 C. J. 164; Merchants' Nat. Bank v. Clark, 139 N.Y. 314, 36 Am. St. 710, 34 N.E. 910; Casco Nat. Bank v. Clark, 139 N.Y. 307, 36 Am. St. 705, 34 N.E. 908; First Nat. Bank v. Wallis, 84 Hun, 376, 32 N.Y.S. 382; Id., 156 N.Y. 663, 50 N.E. 1117; First Nat. Bank of City of Brooklyn v. Stuetzer, 80 Hun, 435, 30 N.Y.S. 83; Union Collection Co. v. Oliver, 23 Cal.App. 318, 137 P. 182; Daniel v. Glidden, 38 Wash. 556, 80 P. 811; Savings Bank of San Diego County v. Central Market Co., 122 Cal 28, 54 P. 273; San Bernardino Nat. Bank v. Anderson, 3 Cal. Unrep. 771, 32 P. 168.)

"If a person merely adds to the signature of his name, whether agent, t...

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