Jefferson County Savings Bank v. Eborn , 84 Ala. 529 ( 1887 )

SOMERYILLE, J.

The suit is one on an attachment bond, claiming damages both actual and exemplary for the wrongful and vexatious suing out of an attachment by the defendant corporation against Eborn, the plaintiff.

1. The objection is raised by demurrer that the defendant, being a body corporate, can not be made liable for exemplary or punitive damages in the action. The court properly overruled the first three grounds of demurrer suggesting this objection, and charged the jury that corporations, although they act by agents, may be liable for damages of this character. There was no error in these rulings. — Atlantic Glass Co. v. Paulk, 83 Ala. 404; Jordan v. Ala,. Gr. So. R. R. Co., 74 Ala. 85; s. c., 49 Amer, Rep. 800; Reed v. Home Savings Bank, (130 Mass. 443); s. c., 39 Amer. Rep. 468; Williams v. Planter's Ins. Co., (57 Miss. 759); s. c., 34 Amer. Rep. 494, and note; P. W. & B. R. R. Co. v. Quigley, 21 How. (U. S.) 210.

2. If the defendant, by wrongfully intervening after the levy upon the goods, induced or “caused” the sheriff to sell the goods in unreasonably large quantities, and not in detail, and this operated to depreciate the price for which they were sold, resulting in their sacrifice, this would be a tort for which the defendant might be liable in a different form of action, or even the sheriff himself, but not the sureties on the attachment bond, because the resulting damages would not be the natural and proximate consequence of the act of suing out the attachment. It would rather be the result of an intervening cause in no wise connected with the levy of the process, or not such as might be naturally expected to follow from it.

The fourth and fifth grounds of demurrer were well taken, and should have been sustained.

There is nothing in the seventh ground of demurrer assigned.

3. The seizure of the plaintiff’s goods by the sheriff, under a writ of detinue issued from the City Court of Birmingliam, at. the instance of the defendant, was a fact irrelevant to any issue properly triable in the present action. The .introduction of this averment in the complaint was prejudicial to the defendant, as tending to lay the foundation for the aggravation of damages, which were recoverable, if at all, in a separate action on the detinue bond, and not in this suit. It was a purely collateral fact, incapable of affording a reasonable presumption or inference as to the principal matter or fact in dispute — the wrongful or vexatious suing out of the process of attachment, and the proximate damages resulting therefrom. And for this reason it tended to draw away the minds of the jurors from the true issue before them, and to mislead them, as well'as to excite their prejudice.

4. The testimony of the plaintiff to the effect that, prior to the issue of the attachment, he made an offer to settle the defendant corporation’s claim by conveying to it certain property, at a specified price which was declined, was irrelevant to any of the issues in the cause. It did not tend to shed any light upon the question of his intention to defraud the bank by the subsequent act of preferring another creditor.

5. It was not competent for the plaintiff to prove the percentage of profits on goods sold, for the colorable purpose of determining the quantity of goods seized by the sheriff, although it was permissible to prove for this purpose the amount of the goods on hand at any given time, and the quantity sold by way of diminution of the stock, with all additions made to it by accretion in the meantime. And in making proof of these facts, if they be within his personal knowledge, the witness could properly be allowed to refresh his memory by referring to his books, shown to have been correctly kept during the time in which he was carrying on his mercantile business.

6. The return of the sheriff was not conclusive as to the amount of goods seized by him under the writ of attachment. If other goods were seized, and were omitted from the inventory, whether by fraud or mistake, this fact could be proved as between the parties to the present action. Hensley v. Rose, 76 Ala. 373.

7. Inasmuch as the evidence tends to show that the goods seized in the detinue suit were the same as those taken under the attachment writ, the witness Brown, who made out the inventory in the former suit, and testified that he knew it to be correct, was competent to state tbe value of tbe goods based on his knowledge thus acqixired, in connection with his experience as deputy sheriff in taking other inventories and making sales of similar stocks of goods.

8. The charges given by the court below conform to the principles announced by this court, touching the subject of transfers and conveyances made by insolvent debtors, by way of preference, in absolute payment of debts due by them to bona fide creditors.- — Hodges v. Coleman, 76 Ala. 103; Meyer v. Sulzbacher, 76 Ala. 120; Levy v. Williams, 79 Ala. 171; Carter v. Coleman, 82 Ala. 177. The various charges requested by the defendant, although many of them announced propositions of -law generically correct, were properly refused on account of their misleading tendencies under the facts of this case. They ignored the particular rule settled in the cases last above cited, which is a qualification of the general rule as to fraudulent conveyances.

9. The bill of sede, executed by the plaintiff to the bank, being intended as a mere mortgage for the security of a debt, and the plaintiff having been allowed to retain possession of the mortgaged goods, and to sell them from day to day for his own benefit, this transfer was obviously fraudulent and void as to Mrs. Eborn, who was a creditor of the plaintiff at the time the instrument was executed. — -Benedict v. Renfro, 75 Ala. 121; s. c., 51 Am. Rep. 429; Sims v. Gaines, 64 Ala. 392; Danner L. & L. Co. v. Stonewall Ins. Co., 77 Ala. 184. It could therefore confer no rights on the fraudulent mortgagee as against existing creditors, including Mrs. Eborn, to whom the plaintiff sold his goods. It necessarily follows that the sale made to her by the plaintiff, if fair and valid, under the rule declared in Hodges v. Coleman, 76 Ala. 103, and other cases above cited, could not be made fraudulent by reason of this void bill of sale. A second conveyance, made upon a valuable consideration and in good faith, is always allowed to prevail over a prior conveyance which is fraudulent. — Eddins v. Wilson, 1 Ala. 237.

These views cover all the questions of importance likely to arise on another trial.

Reversed and remanded.