Myers v. Farrell

SlMRALL, J. : This writ of error is prosecuted to revise the judgment of the circuit court on the trial of the issue arising upon a traverse of the affidavit upon which the attachment issued. The grounds of the attachment set forth in the affidavit are the 2d, 4th, 5th and 6th, enumerated in sec. 1420, p. 286, Code of 1871. The assignments of error are very numerous, but may be classified into three heads. 1. The improjser admission of testimony; '2. The giving to the jury the fourth instruction, asked by the defendant,- and refusing an instruction asked by the plaintiff; 3. The refusal to grant a new trial because the verdict is against law and evidence. The theory of the plaintiff’s case was, that Farrell, the debtor, had formed a purpose, at and before the issuance of the — 283 — attachment, to remove himself and property out of this state, with intent to evade his debts; 2d, and that he was with fraudulent intent about to make such disposition of his property as would defeat his creditors. Farrell was a merchant in Jackson, engaged in miscellaneous trade, dealing in groceries, family supplies, liquors ■ hy the small, and keeping also a restaurant. The effort of the plaintiff was to prove that Farrell had determined to remove from this state as soon as his arrangements were completed;’ that what for a time detained him was, that he might sell off his goods for cash, with the purpose not to apply the money to his creditors, and when that was done, retire from the state with nothing tangible and accessible to legal process. It is propounded as a legal principle by thé creditor, •the plaintiff in error, that if the debtor, at the time the attachment was sued out, had formed the purpose to remove himself and his property, and was converting his goods into money so as to put the property beyond the reach of his creditors, with intent, not to pay his debts then he was amenable to the attachment on one or two of the grounds stated in the affidavit. . . It is not denied that the “ cause” upon which .the attachment rests must “exist” at’the time the writ emanates. What is the meaning of the terms “about to remove”? “About” — does that imply the next hour, or day, or week, or month ? Does the statute convey the idea that necessarily the act must’be done within any definite space of time? The implication is quite strong that the “removal” will shortly occur, but no more definiteness and precision is set forth than the word “about” imports; Among the definitions or senses in which the word is used, given by lexicographers, are, “ near to, in performance of some act,” “ concerned in,” “ engaged in,” etc. Webster’s Unabridged Dictionary. It is an ordinary word of no artificial or technical signification, and — 284 — should receive the rendering which is given to it in common parlance. If the debtor is engaged in the act, or is near to the performance of the act of “ removal,” if he entertains the purpose and is making preparations to carry it out, then the creditor is entitled to the writ. It would be hurtful in practice to attempt to declare precisely what is implied in the terms “ about to remove.” For experience would show that many meritorious cases would fall within the intendment of the remedy, which might be excluded by a rule laid down in advance. We think it wiser and safer in the administration of practical justice, to leave each case, as it arises, to be governed by its own special facts. A leading purpose of the attachment laws, beginning with the amendment of 1844, is to secure to the creditor a remedy against the dishonest and fraudulent debtor. The earlier statutes regarded the writ as in the nature of a distringas, to compel the appearance of the debtor to answer the suit. Under existing law, it is a proceeding “inrem,” to enforce the debt • from. the non-resident, absconding or fraudulent debtor. As the devices and practices of those who set about cheating and defrauding are almost infinite in variety and fertility, courts should be cautious in laying down a rule of interpretation which might be evaded, and make success in such schemes more easy. We concur in the negative reponse made by the court, in Powell v. Mathews, 10 Mo. 49, to the argument, that as the statute gave the writ when “ the debtor fraudulently conveyed, assigned, concealed or disposed of his property and effects,” or was about to do so, it had no application, as Avas said, where the property Avas turned or about being turned into money with such intent. The judges, giving life and power to the intendment and reason of the law, said that there was no difference between hiding out of sight a thousand dollars Avorth of goods and selling the same goods -for cash, — 285 — and putting the money in the debtor’s pocket with intent to eheat. So, too, our predecessors, giving expression to the spirit and intendment of the letter, declared: That although the debtor had removed or was “ about” to remove “ property,” that was not necessarily enough. It must be a removal to that extent Yvhich would not leave enough here to respond to the debt. It must be such removal as would endanger collection here, as would drive the creditor to another state to recover his debt, enough not being here to satisfy the ordinary final process. Montague v. Gaddis, 37 Miss. 453. The plaintiff in error complains that the 4th instruction given for the defendant, limited his rights as a creditor to narrower limits than the terms of the law; in this, that the court told the jury, that in order to sustain the allegation that the debtor was “ about to remove himself or his property out the state, the plaintiff must ‘prove a design or purpose speedily to do so.’ ” The plaintiff urges, also, that the effect of this instruction was to mislead the jury in the consideration of much of the testimony which he offered, and which tended to sustain the affidavit. We are not prepared to say that the instruction may not have had the injurious effect complained of, and may not have conveyed to the jury a mistaken idea of the law, as applicable to the facts. The tendency of the plaintiff’s testimony was to establish the proposition (we express no opinion as to its weight or sufficiency) that Farrel; having expressed an intention to remove, was converting his goods with rapidity into cash, refusing to apply the money to this and other mercantile debts; that his. stock was being rapidly diminished; in the mean time no replenishments were made; that he had withdrawn money several months before, to defray pleasure excursions of himself and family, and to pay for goods which were shipped to a distant market, and that this mode — 286 — of' business and conduct warranted the inference; that within a few weeks more, nearly or quite all of the goods would have been turned into cash, and then the plaintiff, with the proceeds, would remove from the state. - The plaintiff insists, .that although the jury might have been satisfied that the defendant, was thus dealing with his goods, yet if it took such time to dii-pose of them before removal, a,s that the removal would not be “ speedy,” then there was no ground for the attachment, If a purpose exists to remove, and the scheme may be carried out in one. two, three, or. several weeks or months,1 and if this be contemplated with a view to evade or delay creditors, the writ may be taken out. The purpose, like, all other motives and intents, may be inferred from ' the speeches, acts, and conduct of the party. And further, the word “about”.may be so satisfied in meaning, although the movements of the debtor may not be characterized by “ fright,” speed or “ haste; ” thus leaving each caseto be judged of by its • peculiar circumstances. ' , We thiuk that if a debtor, whose property consists of merchandise, has determined to remove himself and property, or the latter, out of this state, and after forming such plan, and as part of it consists.in converting his .merchandise into cash, with the intent not to pay his debts, but postpones his removal until this has been done,he is liable to attachment, under the fourth ground stated in the affidavit; but if, in addition to that, he thus disposes of his proj)erty, with intent to remove out of the state, with the money, a. case may. be made out under the first ground .of attachment. The court refused to grant,the charge to the jury, propounded by the plaintiff after instructing them at the defendant’s instance, “to the effect that the jury may infer the purpose to remove, at the date- of the attachment, from the previous expressions of such design, and the acts of the debtor; nor is it necessary that the — 287 — defendant purposed immediate removal, if from the evidence that the design existed, and his actions purposed to carry that design into execution, at some short time • thereafter and as soon as he had prepared his aifairs for removal, and without paying his debts.” The withholding this charge, connected with the ruling con-> taiued in the defendant’s 4th instruction, was calculated to mislead the jury. This prayer contained a modification of defendant’s 4th .charge which might have enabled the jury to make a judicious application of the law to the facts. It seems to us that the -verdict is excessive. This for itself would not, under the rules which have uniformly governed this court, warrant a new trial. The damages must be so excessive as to be out of proportion for the wrong done, and to produce the conviction that they were not estimated upon 'the basis of compensation, but were the result of haste," inconsiderateness or intemperance. But if the record shows that the jury may have proceeded upon wrong premises, and the court, by its agency, contributed to the error, a case does arise for correction here. Norm so doing, does the appellate court trench upon the exclusive sphere of the jury, or substitute its judgment for that of the jury, as to the quantum, of damages. It is conceded that there was no malice or oppression meditated or intended by the creditor or his agents.' It is quite manifest that the agent. and attorney who impetrated the writ believed that the information upon which he proceeded justified this remedy. It is a case, therefore, limited to' such damages as the defendant has sustained. Sec. 1462, of the Code of 1871, enlarges, perhaps, the elements of damages — “ loss of trade and special injury to business” are to be taken into the account. But how far may the jury go ? If the storehouse of a retail merchant is closed up by an improvidently issued attachment, must the jury go into a calculation of — 288 — profits which the trader may make, which are contingent and uncertain, often more plausible upon paper than are actually realized ? May they estimate the probable profits in collateral business, such as the loss of profits on a wood contract, or on a trade in cider in a distant state; the loss of profits which ensued from breaking up a vast scheme to supply this state and the southwest with cider and oysters ? On a basis like this, the defendant estimated that the levy of attachments for about $1,000 on a stock of goods worth about $1,100 had damaged him $17,000 at least. The admission of this testimony against the plaintiff’s objection doubtless induced the jury to think that the loss of these conjectural and problematical profits, although exaggerated by Farrell, were to be taken into the estimate. We cannot think that the legislature meant that so wide a latitude should be given as to compute losses of profits in trade so speculative and remote, and so incapable of probable certainty, as may have been allowed in this case. Nor should the fact be overlooked that the defendant, by his repeated refusal to pay debts presented for creditors by the Messrs. Green, by the Capital State Bank, by Mr. Bell, and by the attorneys, in the early summer, and his suffering an attachment for only $40 of rent for his storehouse to be levied on part of his goods, were of themselves enough to shake his credit, and bring upon him the injuries resulting to a merchant from that misfortune. After declining to pay his debts, the defendant having, as he says, a “ surplus of money,” started with his family, except one member, on a pleasure excursion to New Orleans; whilst there he embarked in an onion speculation. From New Orleans he went to St. Louis and other points in the west, and engaged in a cider adventure, and was absent two or three months from the state, and from that time until the attachment was — 289 — issued, and afterwards, was only here a short time. It is difficult to see how he would have “ surplus money ” to spend in a pleasure excursion with his family, when one and another and another of his mercantile debts were overdue and unpaid. Nor are we able to understand how he could, with a reasonable prospect of success, expect to adventure so extensively in the cider and oyster trade, when his finances were in that condition that he could not, or would not, pay for the goods upon which he was trading in Jackson. Judgment reversed and venire facias de novo awarded.