Wyman v. Wilmarth
| Decision Date | 25 June 1890 |
| Citation | 46 N.W. 190,1 S.D. 172 |
| Parties | Wyman et al. v. Wilmarth. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The affidavit upon which an attachment is based is prima facie sufficient cause for issuing the writ. But, if the facts set out in said affidavit are denied in a motion for a dissolution, the burden of proof is cast upon the plaintiff to make them good by other affidavits or other proof, in addition to that contained in his adffiavit for the writ. The affirmative is upon him.
2. To sustain an allegation that the debt was contracted for property obtained under false pretenses, it is necessary to show that at the time the debt was contracted, or property obtained, there was an intent on the part of the debtor to cheat or defraud. For that purpose, some false pretense must be designedly used; and the fraud must be accomplished by means of the false pretense; or, if not wholly by that means it must have had so material an effect upon the mind of the party defrauded that without it he would not have parted with the money or property alleged to have been fraudulently obtained.
3. The rule in relation to misrepresentations or false statements is that when the means of knowledge are at hand, and equally available to both parties, and the subject of purchase is equally open to inspection, if the purchaser or seller does not avail himself of the means and opportunities, he will not be heard to say, in impeachment of the sale, that he was drawn into it by misrepresentation.
4. The confession of a judgment by a debtor, in favor of a bona fide creditor, for a just and honest debt, is not a disposition of, nor evidence of an intention to dispose of, property to defraud creditors; nor is the giving of chattel mortgages upon personal property, which is by law exempt from levy by execution or attachment.
Appeal from district court, Kingsbury county; JAMES SPENCER, Judge.
Lynch & Sterling and Charles L. Whiting, for appellants. James F Watson and A. W. Wilmarth, for respondent.
This is a proceeding by attachment. On the 7th day of September 1889, a motion to vacate the attachment was presented to the court; and on the 11th day of September, 1889, the motion was sustained, and the warrant of attachment was vacated. From this order, plaintiff appeals.
The affidavit presents two grounds for the issuance of the warrant of attachment: First, that the debt was contracted for property obtained under false pretenses; second, that the defendant has disposed of, and is about to dispose of, his property, with intent to defraud his creditors. These allegations of the plaintiff were denied by the defendant, on his motion to vacate, in a clear and complete manner.
The only question presented is, does the evidence sustain the judgment of the court below? The statute requires the circuit judge or circuit court to hear the proofs and allegations of the parties; and, if a good and legal cause for suing out the writ is not satisfactorily made to appear to the court upon such hearing, it is its duty to dissolve the attachment, and order the property returned to defendant. The affidavit of the plaintiff, his agent or attorney, is prima facie sufficient cause for issuing the writ. The facts alleged upon which the moving affidavit is based, being denied in the motion for a dissolution, the burden of proof is cast upon the plaintiff to make good the cause he alleges by other competent affidavits, or other proof, in addition to that contained in his affidavit for the writ. He must maintain the affirmative of the issue thus made in order to sustain his lien created by a levy under the writ. This rule is one which seems quite consistent with the relations the parties occupy towards each other in the proceedings. The plaintiff assumes the affirmative by his original affidavit, and the facts there alleged constitute the basis of his right to the remedy. The following authorities support this position: Wade, Attachm. § 281; Coston v. Paige, 9 Ohio St. 397; Macumber v. Beam, 22 Mich. 395; Genesee Co. Sav. Bank v. Michigan Barge Co., 52 Mich. 164, 17 N.W. 790; Sublett v. Wood, 76 Va. 318; Ellison v. Tallon, 2 Neb. 14. Keeping this rule in mind, we now proceed to the examination of the question raised upon the record, and the ruling of the district judge in the case.
As to whether the property for which the debt was contracted was obtained by false pretenses, it appears from the evidence that the defendant, George B. Wilmarth, had been since 1881 a dealer in general merchandise in the village of De Smet, Kingsbury county, Dak., and had been doing quite an extensive business; his sales amounting some years to over $20,000. On the 16th day of April, 1888, being desirous of purchasing a bill of goods of the plaintiffs on credit, he made to them the following general financial statement of his assets and liabilities:
"ASSETS. Cash value of stock in store ............. $7,500 Cash on hand or in bank ..................... 200 Outstanding accounts considered good ...... 1,000 Judgments ................................... 500 Notes not secured, considered good ........ 1,000 Notes and accounts considered doubtful ...... 500 Real estate, 160 acres .................... 1,000 12 lots, dwelling, and barn in De Smet .... 2,500 ------- $14,200 "LIABILITIES. For mdse on open acc. not due ............... $595 " " " " " past due ......................... 1,100 " " closed by note not due ................... 200 Mortgage on homestead, due May 18, 1889 ...... 200 " " " " May 181, 890 ...................... 600 Mortgage on other real estate, due 1890 ...... 350 ------- $3,045"
--Leaving him worth, above liabilities, the sum of $11,155. The plaintiffs state that, relying upon the truth of this statement, they then opened an account with the defendant, and at various times during the years 1888 and 1889 sold him goods as he ordered them; the defendant in the mean time paying cash on his account until July 24, 1889. A balance being then due to plaintiffs of $483.91, they commenced a proceeding against him by attachment. The above financial statement is the only one defendant ever made to the plaintiffs, and they allege it was false at the time it was made, in these particulars: (1) The defendant stated the mortgage on real estate to be $350, when it, in fact, was $400; (2) that he was the owner of 12 lots in De Smet, worth $2,500, when in fact he owned only 6 lots, worth $1,300; (3) that he was indebted to his father in the sum of $128.26, of which he made no mention. These are the only tangible variations that the evidence tends to show in the statement, and militating against the truth of it, making, if true, a difference of $1,378.26. No other portions of the statement are attacked, except, inferentially, as to the amount of stock on hand at the time of the attachment in July, 1889, which was $3,619, showing a shrinkage in value or by sales, since April 16, 1888, of $3,881. The defendant, in explanation of these variations and discrepancies, states that, at the time the financial statement was made to the plaintiffs, it was substantially true, except as to the indebtedness of $128.26 to his father, and, as that was not entered upon his books, it was overlooked at the time; and, as to the amount of goods on hand at the time of making the statement, he says that in January, 1888, he made an invoice of his stock of goods, and the invoice showed that he had at that time of--
| Groceries ................................... | $1,680 27 |
| Dry goods and notions ........................ | 3,194 23 |
| Glass, queen's-ware, and stone-ware ............ | 254 65 |
| Boots and shoes .............................. | 1,839 76 |
| Fixtures, including safe, show-cases, etc..... | 1,040 00 |
| --------- | |
| Total .................................... | $7,999 91 |
The record does not disclose the amount of sales or purchases made, from time to time, from January, 1888, to July 24 1889, but defendant shows that the season of 1888 was a very depressing one in business; that the entire country tributary to the town of De Smet was visited by a severe hail-storm, and crops were almost totally destroyed; that, in consequence of this, but little was done by way of business; that during that year his family, store, and rent expense was very large, all of which necessitated the...
To continue reading
Request your trial