Wanamaker v. Bowes

• Citation: 36 Md. 42
• Parties: JOHN WANAMAKER v. JOHN BOWES.
• Decision Date: 16 May 1872
• Court: Court of Appeals of Maryland

36 Md. 42

JOHN WANAMAKER v. JOHN BOWES.

Court of Appeals of Maryland

May 16, 1872

APPEAL from the Circuit Court for Howard County.

On the 24th of June, 1869, Judson H. Smith executed a bill of sale by way of mortgage to the appellee, of certain goods furniture and household stuff. By a provision in the mortgage, the mortgagor was entitled to retain possession of the property until default, which could not occur until the 24th of June, 1870, the date fixed for the payment of the first instalment of the mortgage debt. On the 19th of October, 1869, the appellant sued out of the Superior Court of Baltimore city an attachment on original process, under the Act of 1864, ch. 306, against Smith, to recover from him the sum of $5,871.30; this attachment was laid on the goods embraced in the mortgage, and the same were seized and sold by the sheriff. On the 21st of February, 1870, this suit was instituted by the appellee in the Baltimore City Court against the appellant to recover damages for the alledged wrongful seizure of said goods.

The declaration contained three counts: The first, a special count in case, for the seizure, and the refusal to restore the goods upon request, "in consequence of which the plaintiff was deprived of the advantage, pecuniarily, of having said goods disposed of at retail; by means whereof he could have realized much greater sums of money for the same than the proceeds resulting from auction sales or sales en masse." The second, a count in trespass de bonis asportatis. And the third, a count in trover.

At September Term, 1871, the cause was tried, but the jury were unable to agree, and it was afterwards removed at the instance of the appellee to the Circuit Court for Howard county, where it was tried in April, 1871, resulting in a verdict and judgment in favor of the plaintiff for $1,000.

Three exceptions were taken by the defendant to the rulings of the Court below.

First Exception: The plaintiff offered in evidence the mortgage to himself from Smith, and also the attachment proceeding, stating at the time of so offering it, that he did so for the purpose of showing that it was void, because the bond which had been given under the Act of 1864, ch. 306 was void. The bond is as follows:

Know all men by these presents, that we, William H. Wanamaker, on behalf of John Wanamaker and Wm. H. Wanamaker, and Robert Cathcart, sureties, all of Baltimore city, in the State of Maryland, are held and firmly bound unto the State of Maryland in the full and just sum of twelve thousand dollars current money, to be paid to the said State, its certain attorney or assigns; to the payment whereof, well and truly to be made and done, we bind ourselves, our heirs, executors and administrators, firmly by these presents. Whereas, the above bounden W. H. Wanamaker has, on the day of the date hereof, ordered an attachment out of the Superior Court of Baltimore city, at the suit of John Wanamaker, against Judson H. Smith, for the sum of fifty-eight hundred and seventy-one dollars and thirty-cents, and the same being about to be sued out of said Court, returnable on the second Monday of January next.

Now the condition of the above obligation is such, that if the said John Wanamaker shall prosecute his suit with effect, or in case of failure thereof, shall well and truly pay and satisfy to the said Judson H. Smith, or to any person interested in these proceedings, all such costs in said suit, and such damages as shall be awarded against the said John Wanamaker, his heirs, executors or administrators, in any suit or suits which may hereafter be brought for wrongfully suing out said attachment, then the above obligation to be void, otherwise to remain in full force and effect.

In witness whereof, we have hereunto set our hands and seals, this 19th day of October, 1869.

JOHN W. WANAMAKER, [Seal.]

(W. H. WANAMAKER,)

WM. H. WANAMAKER, [Seal.]

ROBERT CATHCART, [Seal.]

Signed, sealed and delivered in presence of JOHN W. PEALE.

The sureties verified as to their sufficiency before the clerk of the Court.

The defendant then proposed to prove that the mortgage was fraudulent as against creditors. To this evidence the plaintiff, while admitting that the defendant was a creditor of the mortgagor, at and before the execution of the mortgage, objected, and the Court (HAMMOND, J.) sustained the objection, being of opinion that the attachment bond was void and the whole proceeding illegal, and that the defendant had no right to show that the mortgage under which the plaintiff claimed title to the goods alleged to have been seized, was fradulent as against creditors and void. The defendant excepted.

Second Exception: This exception is fully stated in the opinion of the Court.

Third Exception: The plaintiff offered a duly certified copy of the bill of sale from Judson H. Smith to John Bowes, and gave evidence tending to prove the validity of the respective items of consideration recited in said bill of sale, and that written notice of it was given to the sheriff and to the agent and brother of the defendant before the issuing of said writ of attachment, and that the goods upon consignment from the defendant, at the stores Nos. 38 and 40 W. Baltimore street, were easily discriminated from the residue of the stock of goods then at said store; that prior to and at the time of the said seizure, J. H. Smith was heard to tell Wm. Wanamaker, the agent and brother of the defendant, at the store, that he could readily pick out his brother's (the defendant's) goods that had not been sold; that said consigned goods and all others had marks upon them, and could readily be recognized and distinguished from the defendant's and all other goods upon the premises which were seized; that the goods seized and sold by the sheriff under the attachment, other than those consigned by the defendant and those subsequently purchased by Smith, were covered by the bill of sale aforesaid and upon the premises at the time of its execution; that the entire stock, at the seizure, was worth from $12,000 to $15,000, including the defendant's goods and those covered by the bill of sale, and those subsequently purchased; that the defendant's consigned goods were of the value of about $1,500; that the goods sold by the sheriff did not bring one-fourth of their value. The plaintiff further proved that the sheriff took possession of all the goods in the store by order of the defendant's agent, Wm. Wanamaker, though he knew there was a bill of sale, and so notified the said William, who gave him a bond of indemnity before he would consent to seize and remove the goods from the stores Nos. 38 and 40 W. Baltimore street. A witness of the defendant, one Wm. Wanamaker, also testified that he knew his goods by the marks upon them; that he held a conversation with Judson H. Smith, who informed him that the bill of sale was all bosh, and only given to keep off the creditors; on his cross-examination there was evidence elicited tending to show that this conversation took place after the issuing and levy of the attachment.

To maintain the issue on his part, the defendant offered evidence tending to prove that, on the 24th of June, 1869, he was a large creditor of Judson H. Smith's for a debt contracted in 1868, and in the spring of 1869, and that the said debt remained unsatisfied down to the time of the issuing of the attachment offered in evidence; that when the attachment was issued, the plaintiff was aware of its being issued; and that when the sheriff, under it, proceeded to seize the goods mentioned in the evidence, the plaintiff did not point out to the officers making the seizure the goods claimed by him under the mortgage to him from Smith, dated June 24th, 1869, although he was at Smith's store during the transaction; that when the mortgage was executed, no change was made by Smith in the management of his business; that he contined to buy goods suitable for his business, of the same character and description as those mentioned in the mortgage, down to the time of the seizure under the attachment--such purchases amounting to from four to six thousand dollars--and continued to make sales ranging from about two thousand to three thousand dollars per month, exclusive of the month of August, when they were lighter; that the goods mentioned in the mortgage were kept in a separate place or room from the stock of goods previously consigned to Smith by the defendant, or subsequently purchased by Smith, but that the goods consigned by the defendant were easily discriminable, by reason of the marks and tickets upon them; that before the attachment, Smith promised to surrender to the defendant his consigned goods, but failed to do so; that Smith, in the spring of 1868, failed, being largely indebted to various persons, including the plaintiff and defendant; that a compromise was effected with most of his creditors at thirty-three per cent., the plaintiff and defendant included; that Smith gave his promissory notes to such as agreed to take the thirty-three per cent., at six, twelve and eighteen months; that the first of said notes were paid, the others remaining unpaid; that the plaintiff also took said notes; that none of them were paid in consequence of Smith's alleging to the plaintiff his inability to meet them; that the plaintiff, without either communicating or concealing the fact from the creditors who made such settlement, gave Smith back these notes, and the whole original debt formed a portion of the consideration of the bill of sale, which was given the 24th of June, 1869.

The defendant further proved, that no part of the proceeds of the goods seized and sold under the attachment was paid over to him, but that the whole net proceeds were paid to Emill...