Virginia-Carolina Chemical Co. v. Wilkins

• Decision Date: 31 July 1916
• Docket Number: 9486.
• Citation: 89 S.E. 659,105 S.C. 291
• Parties: VIRGINIA-CAROLINA CHEMICAL CO. v. WILKINS.
• Court: South Carolina Supreme Court

89 S.E. 659

105 S.C. 291

VIRGINIA-CAROLINA CHEMICAL CO. v. WILKINS.

No. 9486.

Supreme Court of South Carolina

July 31, 1916

Appeal from Common Pleas Circuit Court of Richland County; T. J Mauldin, Judge.

Action by the Virginia-Carolina Chemical Company against Van Dorn S. Wilkins, doing business under the name of Yellow Hard Pine Lumber Company. From adverse orders plaintiff appeals. Affirmed.

Plaintiff's affidavit for attachment is as follows:

State of South Carolina, County of Richland.

W. S Neil, being duly sworn, deposes and says:

1. That he is an agent, to wit, the manager of the Columbia sales division of the Virginia-Carolina Chemical Company, the plaintiff in the above-entitled action, and that he has personal knowledge of the various transactions between said plaintiff and defendant hereinafter stated.

2. That Van Dorn S. Wilkins, doing business under the name of Yellow Pine Hardwood Lumber Company, the defendant in said action is justly and truly indebted to said plaintiff in the sum of two thousand one hundred thirty-four ($2,134) dollars upon the following facts, to wit: That heretofore and on or about the 11th day of November, 1915, said defendant, in the said name and style of Yellow Pine Hardwood Lumber Company, entered into an agreement, in writing, with said plaintiff, wherein and whereby said plaintiff agreed to sell and deliver to the defendant, and the defendant agreed to purchase from the plaintiff (among other things) two hundred forty-four thousand (244,000) feet of one-inch board and scantling, the property of the plaintiff, and being then located and situated in said plaintiff's yard, in the city of Columbia, S. C., at and for the agreed price of eleven ($11.00) dollars per thousand feet. That under and pursuant to the terms of said contract said defendant was to pay the said purchase price to the plaintiff as fast as each car of said lumber should be dressed and loaded for shipment by said defendant, and it was further agreed that said defendant would commence moving said stock on his yard and would remove and ship the same within about thirty days from the date of said contract. That thereafter, and immediately subsequent to the making of said contract, said plaintiff delivered said lumber to the defendant and the said defendant removed all of said lumber from the plaintiff's yard, in said city of Columbia, to a lumber yard, in said city, in the possession of said defendant. That after the making of said contract, and prior to this date, said defendant has loaded and shipped to points without the state of South Carolina at least three carloads of said lumber, containing in the aggregate the sum of about fifty thousand (50,000) feet. That under and pursuant to the terms of said contract the defendant is indebted to the plaintiff in the sum of five hundred fifty ($550) dollars on account of the purchase price of said three carloads of lumber loaded and shipped as aforesaid, but that said defendant has failed and neglected to pay to the plaintiff the said sum of five hundred fifty ($550) dollars or any part thereof. That heretofore, and on or about the 23d day of December, 1915, the above-entitled action was begun by said plaintiff against said defendant by the service of a summons and complaint therein upon said defendant and that said action was brought to recover the said sum of five hundred fifty ($550) dollars owing by the defendant to the plaintiff as aforesaid.

3. That more than thirty days have elapsed since the date of the execution of said contract, and that under and pursuant to the terms thereof the whole of the balance of said purchase price, to wit, the sum of two thousand one hundred thirty-four ($2,134) dollars, has become due and payable, and that an amended complaint is about to be served upon the defendant in the above-entitled action, setting forth the above facts and asking for damages against said defendant in the said sum of two thousand one hundred thirty-four ($2,134) dollars, over and above and in addition to the aforesaid sum of five hundred fifty ($550) dollars.

4. That said defendant, as deponent is informed and believes, has already removed certain of his property, to wit, the three carloads of lumber hereinbefore mentioned, and is about to remove certain other property, to wit, the balance of the lumber purchased from the plaintiff as aforesaid from the state of South Carolina, with intent to defraud his creditors. That said defendant has also assigned and disposed of certain property, to wit, said three carloads of lumber shipped as aforesaid, and is about to assign and dispose of certain other of his property, to wit, the balance of the lumber purchased from the plaintiff as aforesaid, with intent to defraud his creditors. That this deponent acted for and on behalf of said plaintiff in making said contract; that the deponent has personal knowledge of all the negotiations between the plaintiff and the defendant in connection therewith. That by the terms of said contract the said defendant was to pay for said lumber as fast as the same should be dressed and loaded for shipment by said defendant; and that said defendant further agreed to remove and ship the whole of said lumber within about thirty days subsequent to the date of the execution of said contract. That by the statements made by said defendant to this deponent, said defendant has already shipped three carloads of said lumber to points without the state of South Carolina, to wit, points in the state of Virginia, without paying the purchase price therefor, or any part thereof; nor has said defendant paid to said plaintiff any portion of the purchase price of said lumber, although the time within which said lumber was to be moved and shipped by said defendant, under and pursuant to the terms of said agreement, has elapsed. That said defendant has stated to this deponent in the course of a recent conversation had between them that he had shipped said three carloads of lumber to Bridgeport, Connecticut. That said statement was false and untrue, and that this deponent has subsequently learned that said cars of lumber were shipped to points within the State of Virginia, and not to Bridgeport, Connecticut, as stated by defendant to this deponent. Deponent further states that said defendant has informed deponent that he expects to continue the shipment of said lumber, and this deponent verily believes that it is the purpose and intent of said defendant to continue the shipment of said lumber to points without the state of South Carolina, without paying therefor according to the terms of his said agreement with the plaintiff. That said defendant has only resided in the city of Columbia for a short space of time; that deponent has recently made careful inquiries as to the financial standing and ability of said defendant, and has learned that the defendant is a person of little, if any, financial worth, and that if defendant is allowed to continue to ship said lumber to points without this state, the said plaintiff will be unable to recover from the defendant for the purchase price thereof.

5. That the above-entitled action has already been commenced...