Wilson v. Sullivan

• Decision Date: 11 June 1898
• Docket Number: 896
• Citation: 17 Utah 341,53 P. 994
• Court: Utah Supreme Court
• Parties: R. G. WILSON, RESPONDENT, v. JOHN T. SULLIVAN, APPELLANT

53 P. 994

17 Utah 341

R. G. WILSON, RESPONDENT, v. JOHN T. SULLIVAN, APPELLANT

No. 896

Supreme Court of Utah

June 11, 1898

Appeal from district court, Fifth district; E. V. Higgins, Judge.

Action by R. G. Wilson against John T. Sullivan for conversion. Plaintiff had judgment, and defendant appeals.

Affirmed.

Moyle Zane & Costigan, for appellant:

It has been held that an assignment by a firm which contains preferences or exacts releases, must assign all the individual as well as partnership property. Insurance Co v. Wallis, 23 Md. 173; Henderson v. Bliss, 8 Ind. 100; In re Allen, 41 Minn. 430; Thomas v Jenks, 5 Rawle 221; Leaving v. Brinkerhoff, 5 Johns chp. 329; McFarland v. Bate, 25 P. 238. See Stanford v. Lockwood, 95 N.Y. 582; Spencer v. Jackson, 2 R. I. 35; see also Maughlin v. v. Tyler, 47 Md. 545; Bishop on Insolvency, p. 287, sec. 237.

Chief Justice Marshall says (5 Cranch, 351): "Fraud consists in intention, and that intention is a fact which ought to have been averred, for it is the gist of the plea and would have been traversable."

Intent is a fact to be proven like any other fact. Edgington v. Fitzmaurice, 55 L. J. Rep. Ch. 650.

A witness may be asked his intent as a fact. Barnhart v. Fulkerth, 93 Cal. 497; Delano v. Goodwin, 48 N.H. 203; 22 Cent. Law Journal 271.

Dey & Street and W. H. Bransel, for respondent:

In case of an assignment for creditors the assignor can be asked as a fact whether he had the intent to defraud. Seymour v. Wilson, 14 N.Y. 567; Watkins v. Wallace, 19 Mich. 57.

Intent is always a question of fact. Miller v. Stewart, 24 Cal. 502; Bull v. Bray, 89 Cal. 302, 303; Billings v. Billings, 2 Cal. 107.

Finally the averment of the statutory intent is sufficient. Hagar v. Shindler, 29 Cal. 60; Judson v. Lyford, 84 Cal. 508; In re Patton, 42 P. 459; Therkel v. Scott, 34 P. 851; Cone v. Ivinson, 33 P. 31; McKenna v. Crowley, 11 A. 354; Riley v. Carter, 35 Am. St. Rep. 443.

Even under common law pleading in a case like this the plaintiff need not resort to separate action in trespass, trover, etc., to redress his wrongs. By bringing his "action on the case" for breach of official duty he could occupy the vantage ground of recovering all damages flowing from the official acts complained of in a single trial upon a declaration showing the official acts and pleading the separate items of damage arising therefrom. 26 Am. & Eng. Encyc. Law, pp. 699-704; Van Dresor v. King, 34 Penn. St. 201; Brown v. Jarvis, I. Meeson & W. 704; Williams v. Wostyn, 4 Meeson & W. 145; Aireton v. Davis, 9 Bingham 741; S. C. 23, E. C. L. 784; Wintle v. Freeman, II Ad & El. 539 S.C. 39, E. & L. 294; Pomeroy Code Remedies, sec. 20.

The validity of a general or partial assignment with preferences, depends wholly upon the statute regulating assignments, and it is conclusively settled that unless prohibited by statute, partial assignments with preferences may be made, leaving the unassigned residue open to the claim of creditors. Burrill on Assnts. (5th Ed.) sec. 164 and cases cited in note; Grover v. Wakerman, II Wend. 187; Wilson v. Forsyth, 22 Barb. 105, 122-7; 1 Am. Lead. Cases, (Hare & W. notes) Ed. 1857, p. 65; Estabrook Wessersmith, 18 Wis. 545, 550.

Upon the same principle the assignment of partnership property for the benefit of creditors is not invalid by reason of the individual property not being assigned. Johnston v. Dunn, N. J. Eq. 29 A. 361; Auleg v. Osterman, 65 Wis. 118; Trumbo v. Hamel, 29 S. Car. 520; Blair v. Black, 31 S. Car. 364; Blake v. Faulkner, 18 Ind. 47; Ex parte Hopkins, 104 Ind. 157; Bradly v. Bischel, (Ia.) 46 N.W. 755.

I. In every one of the following cases, it is held that the very formula of words used in the answer of defendant and above quoted, pleads a mere legal conclusion, presents no issue and does not justify the admission of evidence of fraud. Eaton v. Metz, 40 P. 947; Gleason v. Wilson, 29 P. 698; Seeleman v. Hoagland, 34 P. 995; Coal Co. v. Hazard Powder Co., 19 So. 185; West Coast Grocery Co. v. Stinson, 43 P. 35; Heintz v. White, 17 So. 185; Curran v. Olmstead, 14 So. 398; Loncheim v. Bank, 13 So. 374; Albertoli v. Branham, 80 Cal. 631; Meeker v. Harris, 19 Cal. 278.

The instruction complained of is correct. The defendant was properly chargeable with the whole value of the goods at the date of conversion, with interest from said date. If plaintiff saw fit to credit him with the goods returned, less damage thereon, and to claim only the damage and interest thereon, this was a very favorable concession to the defendant. Sutherland on Damages, (1st Ed.) 239-240; Tenny v. Bank, 20 Wis. 161; 3 Sutherland Damages, (1st Ed.) 487, 489.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

It appears from the complaint: That in August, 1896, W. F. Schriver and Hannah Tucker were co-partners doing a general mercantile business at Eureka under the firm name and style of W. F. Schriver & Co. On the 20th day of August, 1896, Schriver & Co. made a general assignment of all their property, for the benefit of their creditors, to plaintiff, R. G. Wilson, as trustee. Wilson immediately took possession of the assigned property, consisting of a store building, with a large quantity of merchandise and other property. On the 25th day of August, defendant, Sullivan, as sheriff of Juab county, with notice of plaintiff's rights therein, broke into said store, and levied a writ of attachment upon said store and contents, issued in a suit of Parsons against Schriver & Co., and continued to hold possession of said property under said writ. On November 2, 1896, said writ of attachment was dissolved and discharged by order of court, as having been improperly issued. Thereafter defendant wrongfully continued to hold possession of said property until judgment was obtained in the suit of Parsons against Schriver & Co., when said defendant levied an execution issued on said judgment upon said property, and sold and converted to his own use, as such sheriff, the greater part of said goods, to satisfy said execution, amounting to $ 5,212.88, and the remainder of said goods were afterwards returned by said defendant to the plaintiff, as assignee, in a damaged and worthless condition. That while said sheriff had possession of said goods he damaged and injured them, and they were depreciated in value to the amount of over $ 1,000. Plaintiff claims damages for the wrongful withholding of the possession of the store building, and for injuries to the glass in the building while so occupied by him, and for detaining books of account, bills receivable, and accounts assigned for so long a time that the debtors became insolvent, and collections thereon lost, for which specific damages were claimed, and that said sheriff failed to perform his duty as such, to the total damages of plaintiff amounting to over $ 6,000.

The defendant filed his demurrer to said complaint, and, among other grounds, alleged that the several causes of action are improperly joined, and not separately stated. It is plain that the subject-matter of the action was for a tort arising out of certain wrongful, continuous, official acts of the defendant as sheriff, whereby the rights of the plaintiffs were injuriously affected. The wrongful acts are set forth with some particularity, and the damages resulting therefrom are separately stated as arising from a breach of official duty. These acts are all connected, as being one continuous, tortious act, and all arising out of the same kind of action, and connected with the same subject of action, and are stated in ordinary and concise language. In serving a writ of attachment which directs the taking of property of a particular person, an officer acts officially. In taking the property of a person not named in the writ, the sheriff was guilty of a breach of official duty, and such act was wrongful, although it was an attempt to perform an official duty. When an officer acts thus wrongfully, the act is official, and he is liable for such wrongful act. Counting as the complaint does upon official acts resulting in injury to the plaintiff simplifies the procedure, without violating its rules, and reaches substantial rights, without resorting to a multiplicity of suits for their redress. The demurrer was properly overruled. Rev. St. Utah, §§ 2960, 2961; Lammon v. Feusier, 111 U.S. 17, 28 L.Ed. 337, 4 S.Ct. 286; Stevens v. Tuite, 104 Mass. 328; Irrigation Co. v. McIntyre, 16 Utah 398, 52 P. 628; 5 Enc. Pl. & Prac. 719; Frizzell v. Duffer, (Ark.) 58 Ark. 612, 25 S.W. 1111; Razzo v. Varni, 81 Cal. 289, 22 P. 848; Pom. Code Rem. § 20; De La Guerra v. Newhall, 53 Cal. 141; Funk v. Funk, 35 Mo.App. 246; Jones v. Smith, 8 Johns. 383.

Plaintiff assigns error in allowing the deed of assignment to be introduced in evidence, for the reasons: (1) It does not assign individual property of the partners; (2) it only conveys a life estate in the real property assigned; (3) it contains no power of attorney to make collections, or give receipts or acquittances; (4) it is not executed by Schriver & Co., or in their behalf.

The deed of assignment purports to transfer to the assignee all the real and personal property of the firm, for the benefit of all the creditors of the partnership. With reference to the first objection, to the effect that the individual property of the partners is not assignable, reference may be had to the statute. Section 2471, Comp. Laws Utah 1888 provides, "that the assignment of any partner in trade made to secure or satisfy any creditor, shall be deemed valid in law." Section 2472, provides, "This act shall not be so construed as to authorize the assignment of any of the effects of such co-partnership to satisfy the individual claim of any of the parties, or other...