Lawler v. Herren

Mr. Justice Thomson delivered the opinion of the court. This was an attachment suit brought by the defendant in error in which the jury found the issues in her favor, sustaining the attachment, and assessing her damages at the sum of $4,313.45, on which the trial court entered a judgment, as a result of which the defendant sued out this writ of error. It is urged by the defendant in error that the judgment should be affirmed by reason of the fact that the certificate attached to the transcript of the record does not certify that it embraces all of the evidence. We believe tha/t the transcript contained in the record is sufficient. At its close there is a certificate of the trial judge in which he certifies “that the foregoing is a correct statement of the facts appearing upon the trial of the case and all questions of law involved in said case and the decisions of the court upon all such questions of law.” At the close of the testimony, as it appears in the transcript, are the words, “which was all of the evidence received or offered on the trial of said cause.” The defendant contends that the judgment of the trial court should be reversed by reason of alleged error committed in overruling his motion to instruct the jury to find in his favor on the attachment issue and in this connection, by reason of further error in admitting certain evidence on behalf of the plaintiff over defendant’s objection. The court admitted some evidence with reference to a deed whereby the defendant had previously conveyed a piece of real estate. Whether or not this was error is immaterial and unimportant, in view of the fact that the affidavit for attachment set forth two grounds for the attachment and alleged not only that the defendant had fraudulently concealed and disposed of his property so as to hinder and delay his creditors, but also that he was “about to fraudulently conceal, assign, and fraudnlently dispose of Ms property and effects for the purpose of hindering Ms creditors. ’ ’ After the defendant had presented Ms motion to instruct the jury to find the issues in Ms favor on the attachment issue, the court permitted the plaintiff to resume the stand for the purpose of giving further testimony as to representations which the defendant had made to her on which she based her affidavit, and the defendant contends that this amounted to error. It was within the sound discretion of the trial judge as to whether or not he would permit the plaintiff to submit further evidence on this point, and the record does not disclose any abuse of this discretion. TMs question also becomes unimportant, however, in view of the fact that there was already in the record sufficient testimony to warrant the court in denying the defendant’s motion, for, when the plaintiff was first on the witness stand, she had testified that, in talking with the defendant ' on December 1, 1915, about a week before she instituted this suit, and when urging him to make some payment to her, he had said: “Now, if you will wait I will pay you every cent that I owe you, and, if you don’t, I will convey my property and I will .put everything out of my name, and you cannot collect a dollar off of me, and, if you will wait, I will give you tMs money.” Such a statement by a debtor furnishes sufficient cause for the issuing of an attachment on the ground alleged by the plaintiff in her affidavit. Dueber Watch Case Mfg. Co. v. Young, 155 Ill. 226; National Park Bank v. Whitmore, 104 N. Y. 297; Livermore v. Rhodes, 3 Rob. (N. Y.) 626; 19 Hun (N. Y.) 625; Hanks v. Andrews, 53 Ark. 327; Newman v. Kraim, 34 La. Ann. 910. The defendant urges that the fact that the record discloses that he had more than enough cash to Ms credit in the bank to satisfy Ms indebtedness to the plaintiff clearly demonstrates that he had no intention to convey or dispose of his-property, as alleged. On the contrary, the very fact that this was the case would warrant the jury in finding,-if they believed the plaintiff’s testimony as to her conversation with the defendant of December 1st, that the conveyance defendant was threatening to make was one by which he intended to so fraudulently conceal or otherwise dispose of his property as to hinder or delay his creditors. White v. Leszynsky, 14 Cal. 166. The defendant further contends that the trial court erred in refusing to give the jury an instruction which he tendered, reading as follows: “The court instructs the jury that it was the duty of the plaintiff in this case, if the jury find false representations were made, upon the discovery thereof, to have immediately taken action and disaffirmed the arrangement or agreement between her and the defendant within a reasonable time, and not to have permitted the defendant to go on after such discovery, if you find that she did so permit him, and act in accordance with her investment in the proposition. A person to whom fraudulent representations have been made cannot sleep upon or experiment upon their rights in the matter, after the discovery that such representations were false, but must act promptly and not experiment or wait until the matter is known to prove a loss or gain before electing what to do.” The defendant’s contention is that, in view of the evidence, it was the duty of the court to give this instruction. In our opinion the court was correct in the ruling made as to this instruction. It is bad in form, being argumentative, and, furthermore, the. court would not have been warranted in giving it, if it was correct in form, by reason of the evidence which was before the jury. Plaintiff’s claim is made up of a number of items, one of which was an amount of money she stated she had advanced on defendant’s representation that he owned some land in Montana containing valuable onyx deposits and that he was forming or had formed a corporation, to which he bad conveyed this land, in consideration for which she was to receive stock in the corporation. The plaintiff testified that on December 1st she became aware of the fact that he never owned the land and had never conveyed it to the corporation. This suit was instituted two days later. Finding no error in the record, the judgment of the Superior Court is affirmed. Affirmed.