Marx Bros. v. Leinkauff

COLEMAN, J. — Special averments are necessary to let in' evidence for the recovery of special damages, but such special damages must be the natural and proximate result of the wrong in order to authorize their recovery. The averments must also be of such character, if sustained by proof, as to. furnish data from which the damages may be calculated with reasonable certainty. If the damages be speculative, or too-remote, neither averment nor proof will authorize their recovery. Loss of credit and business are the natural consequences. — 461 — of suing out an attachment against a merchant on account of fraud, and may be averred in the complaint.— Goldsmith v. Picard, 27 Ala. 149; Donnell v. Jones, 13 Ala. 490; Flournoy v. Lyon & Co., 70 Ala. 313. In the case of Pollock & Co. v. Gantt, 69 Ala. 378, it was held, that “good or bad credit -was a conclusion of fact, partly based on opinion and judgment, founded more or less on reputation; that it was a collective fact, made up of many known ingredients. That a witness could speak of credit as a fact, and its extent, but not of its value in dollars and cents.”. A merchant’s general credit could not be established by proof that two or more named persons were willing to extend to.him credit; neither could it be shown that his credit was injured because simply two or three particular persons refused him credit. Business relations may be contracted or interrupted by many considerations not dependent upon the question of credit or ability to pay, and it would be unsafe to declare as a rule that the credit of a merchant, or its loss, are dependent upon his sustaining such a relation to two or three named customers. In the case from 69 Ala. supra, evidence was introduced that Gantt was a general merchant, and among his customers were timber men whose trade he lost by reason of the attachment. This court held, there, were no averments in the complaint to authorize the introduction of such evidence, and if there had been, the damages claimed on this account were too remote and speculative. The damages resulting -irom loss of credit so that plaintiffs could not borrow money from Pollock & Go., or Levy, and Levy & Go., were too remote and speculative, and there was no error in sustaining the demurrer to this part of the complaint- indebtedness, or even insolvency, alone, will not justify the suing out of an attachment, but these questions sometimes become important in determining the Iona, fides of the disposition of goods; and “if'the question be one of fraudj whatever fact tends to show the good or bad faith of the party throughout the whole transaction, is properly admissible in evidence.” — Durr v. Jackson, 59 Ala. 203. While plaintiff was a witness i# his own behalf, on the cross-examination, it was entirely competent for the defendants to interrogate him on material matters in regard to which he had testified in his deposition taken by defendants under the statute authorizing the examination of parties. The defendants could not offer a part of the deposition in evidence without offering the whole; but the fact of having taken this deposition did not require the defendants to offer it in evidence, and .the answer-of the witness on cross-examination might determine the ad — 462 — vantage or necessity for using the deposition on the trial. Code. § 2818. Portions of the testimony of the witness Glennon were objected to, on the grounds that it was “irrelevant and immaterial.” We think it was both relevant and material to show the value of the goods attached, and an auctioneer who had sold stocks of goods in Mobile for twenty years was competent to testify that the goods of plaintiffs, sold by him at auction, brought a fair price under the circumstances. The extent of his knowledge of the character of the goods, was a matter of cross-examination and argument to the jury. — Jefferson Co. Sav. Bank v. Eborn, 84 Ala. 535. It was competent to prove by the witness Sheurman, or Sherman (the spelling occurs both ways in the bill of exceptions), that he bought shoes from the plaintiffs, and, after refreshing his' memory as he did as to the price paid, to testify to the price paid for them to plaintiffs. It was also competent for the witness to testify that he pointed these shoes out to the witness Jacobs. These are facts. It was also competent for the Witness Jacobs to testify that he saw shoes in the store of Sherman, which were pointed out to him by Sherman, and he recognized and identified them as shoes sold by his firm to plaintiffs, and to further testify 'as to the cost price at which they were sold to plaintiffs. In this way the shoes could be identified, and the price paid by plaintiffs for them, and the price at''which plaintiffs sold to Sherman, could be ascertained. But it was not competent to prove by the witness Sherman that he paid eighty cents for the shoes, by a statement to that effect to Jacobs, made in the absence of plaintiffs, and then to permit the witness Jacobs to testify to such a statement. A party can not strengthen his own testimony, by introducing evidence' that he made the same statement at other times to different persons. ' Such evidence may be admissible to impeach or’ contradict, but not to corroborate.— Western Asso. Co. v. Stoddard, 88 Ala. 614. If it was necessary in order to fix in the mind of thé witness Jacobs the particular lot of shoes interrogated about, to call his attention to the statement made at the time as to the price paid, for this purpose only, that of identification, such statement was admissible, but not as proof of the price paid. We find no other error in the record as to the rulings of the court upon' the admission of testimony. The dourt instructed the jury, “If you believe that Marx Bros, sold' goods to Marx of Mississippi, and that at that time the debt to Olaflin & Go.' existed, this fact, together with the fact of 'the relationship of the parties, may be- looked to as á — 463 — fact from which fraud might be presumed.” When a conveyance of property is attached as fraudulent, by creditors whose debts were in existence prior to the date of the conveyance of the property, the burden to show that a valuable and adequate consideration was paid for the property rests upon the purchaser ; and when the transaction of sale or purchase is between near relatives, clearer and more conclusive proof is required of the consideration paid and of the bona fieles of the transaction. The relationship does not raise the presumption o,f fraud, is not a badge of fraud in itself, neither does it impose upon the purchaser the burden of proof to show the bona fides of the transaction. The fact that plaintiffs’ debt against the vendor existed prior to the conveyance places the burden of proof upon the purchaser, and, if he be a near relative, the transaction will be more closely scrutinized, and clearer proof will be required to remove the burden, than if the parties were strangers. — Hubbard v. Allen, 59 Ala. 301, 297; Gordon v. McIlwain, 82 Ala. 252; Pollock v. Searcy, 84 Ala. 263; Moog v. Farley, 79 Ala. 252; Apfel v. Crane, 83 Ala. 312; Galhoun v. Hannon, 87 Ala. 284. Cases in which this principle has usually been applied were where the attacking creditor sought to reach the property conveyed, or by process of the writ of garnishment reach a debt due the defendant debtor. The ’property sold to the brother Lee EL Marx was not attached, neither • was he garnisheed. When the issue is one of fraud, great- latitude is allowed in the range of the evidence. The actions of the party to whom fraud is imputed, his relative position, a reasonable time before, at, and a reasonable time after the time at which the act of fraud is alleged to have been committed, are all admissible, if they throw light on the transaction. — Snodgrass v. Br. Bank, 25 Ala. 174; Shealy v. Edwards, 75 Ala. 416. The evidence in regard to the various sales and the circumstances surrounding them, made to their brother, was admissible, and should have been considered by the jury. There was some evidence connected with these particular sales to the Mississippi brother which tended to show that they were of the same character as those'which had been made to him for a number of years, and that they were all “made in the due course of trade,” and were at a “fair profit.” However weak and inconclusive such testimony may have appeared to the court in the light of other evidence, in formulating a charge to the jury to be applied to the sales made to the brother, the court should not have stated that the jury might presume fraud from the mere existence of plaintiffs’ debt to — 464 — Claflin' & Co., and the relationship of plaintiff to the purchaser, without any reference to the testimony of plaintiff intended to be explanatory of the sales. — Fariss v. State, 85 Ala. 5. If they were all made in the “due course of trade,” and at a “fair profit,” and if this evidence was credited by the jury, the presumption of fraud did not arise, simply from the facts predicated in the charge. In the case of Fariss v. State, 85 Ala., supra, it wgs declared that a charge given on the effect of evidence, must not ignore other testimony, the tendency of which is to vary or impair the force of the testimony the charge rested on. In charging the jury on the effect of the evidence, and referring to the fact “that Lee IT. Marx ceased to do business at Shubuta shortly after plaintiffs were attached,” the charge entirely ignores the explanation given of this fact. Whether creditable or not, the explanation was a question of fact for the jury, and should not have been omitted in summing up the other facts upon which this charge rested. The presumption conveyed to the minds of the jury, under such circumstances, is, that the explanatory testimony omitted is not entitled to any weight or consideration. TheTe was no error in assuming that Lee H. Marx was a brother of the plaintiffs. The bill of exceptions shows that the proof was uncoñtradicted, and that it was an admitted fact. The 'ftile declared in Jonas v. Field, 83 Ala. 445, that the court can not assume- any fact proven which depends upon parol testimony without invading the province of the jury, does not apply in such cases. . An exception to a part of a charge only, which states a conclusion of law to the jury, will not be sustained, if the statement asserts a correct proposition. In such cases, it will be presumed that a proper predicate of facts either preceded or followed the legal proposition to which it referred, and more especially when the record shows there was such evidence before the jury. The attachment was sued out for $2,770.00. It was admitted that there was due plaintiff in attachment $2,723.00. The plaintiffs in this suit asked the court to charge the jury, that, to the extent of the difference between the debt claimed in the attachment and the debt due, the attachment was wrongfully sued out. The court refused the charge. The suing out of an attachment can not be both wrongful and rightful at the same'time, or pro tanto wrong. If the suing out of the attachment was not wholly wrongful, plaintiff could not recover for a- wrongful suing out the attachment. Where the disparity of the debt due and that for which an attachment — 465 — may have been sued out is so .great'as to manifest an intention to abuse the remedy afforded by the extraordinary process of attachment, possibly in such cases an action for both “vexatious” and “wrongful” use of the writ would lie. Such is not the case here, and the charge was properly refused.— City Nat. Bank v. Jeffries, 73 Ala. 190; Sims v. Jacobson, 51 Ala. 186. The other charges to which exceptions were taken and insisted on in argument, are substantially the same as were given in the case of Calhoun v. Hannon, 87 Ala. 281, and held by this court to be good. For the two errors pointed out, and commented on, the case must be reversed and remanded.