G. Seeligson & Co. v. A. Rigmaiden & Co.

The opinion of the Court was delivered by Manning, J. The plaintiffs, a commercial-firm of Galveston, sued the defendants, a firm of Lake Charles, for $2987.80 with interest from June 30, 1881, and attached their stock of goods. The defendants moved to dissolve and claimed damages for the injury caused by tbe attachment, which having been referred to the merits the whole issuo was tried by a jury who gave the plaintiffs judgment for their demand without interest and gave the defendants judgment for $3000 with interest, and the plaintiffs appeal. One of the grounds of the motion to dissolve is that “ the order of the clerk in granting the attachment is not sealed with the seal of the court as required by’law.” It is seriously taken for it is reno,wed in the brief, and it was seriously received for the judge charged the jury that the seal was “ossen [724] tial to the validity of all orders of the clerk” and if they should find that its omission was not caused by plaintiffs and should dissolve the attachment on the ground alone of its omission, then they must not give damages. There is no room for the supposition that the writ of attachment was confounded with the order for the issuing of the writ. The writ has the seal. There is no dispute about that, and the order does not need the seal. The writ goes into the sheriff’s hands and the seal authenticates it, but the order does not go from the clerk’s hands. The only significance of attaching'the seal to it would be to assure himself that he had signed it and the law does not require such purposeless acts of any officer. The other ground of the motion is that the facts and allegations of the attachment proceedings are untrue. The sole ground for the attachment alleged is that the defendants had mortgaged a portion of their property to another creditor with intent to give him an unfair preference “thereby entitling the plaintiffs, says the petition, to an attachment.” It turns out in the evidence that the plaintiffs had asked aud even insisted on the defendants giving them a mortgage accompanied with ail engagement to buy only from them, and the defendants refused to give it burdened with this onerous condition. They did not owe this other creditor as much as two hundred dollars hut he agreed to let them have goods not to exceed a given sum at one time and the mortgage was given to secure this continuing credit. There was no concealment about it. The plaintiffs could have doubtless had the same arrangement but they demanded his exclusive trade in articles in their line. The defendants did not give the mortgage until after the plaintiffs liad demanded one in their favour, and the refusal of the plaintiffs to credit them farther was the cause of their application to the other creditor. Notwithstanding this refusal and the termination of their business relations, the defendants continued to pay them the balance that was due. Their purchases of the plaintiff's had reached the sum of $27,000 and they had paid all hut the balance now sued for. They paid $1500 or thereabouts after the plaintiffs had refused to credit them further. So far from exhibiting any desire or intention to defraud the plaintiff's or give any other creditor a preference over them, they evidenced the purpose to pay them as fast as possible and did auto their more obliging creditor only what the plaintiffs wanted should be done to them. The suggestion of a mortgage first came from the plaintiffs. [725] T3ie defendants’ store was shut up under the attachment eleven days—their credit was seriously impaired—all their creditors came down upon them and they lost trade, credit, and profits. We are urged to impute fraud to the defendants because their property was assessed lower than its value. That habit is chronic all over the land, but the plaintiffs were not hurt by it. They never regulated their credit to the defendants by the value they put on their property on the assessment roll. It did not form an element in the plaintiffs’ estimate of what the defendants were really worth, and we cannot permit them to champion the State’s interest in. appearance when their patriotism and public spirit serves only to ward off responsibility for damages occasioned by a rash and illegal act. Both parties wish us to end their disputes and not send them back to another jury. We shall gratify them, but shall leave them where we find them. The verdict has very much the appearance of an attempt by the jury to balance accounts. The'plaintiffs claim $2987. The jury give it to them and give the defendant $3000. We don’t know that we could do any bettor in such a case as this. The jury however made the mistake of giving interest where it was not due and of withholding it when it was due and left out eighty seven dollars through a clerical error—mistakes which we correct. It is therefore ordered that the judgment of the lower court is amended by substituting $2987 ^ to that mentioned in the judgment as in favour of the plaintiffs and that the same bears five per cent per annum interest from June 30, 1884, and that the judgment in favour of the defendants so far as it allows interest on the same be stricken out, and that the defendants pay the costs of this appeal.