Bayonne Knife Co. v. UmbenHauer , 107 Ala. 496 ( 1894 )

COLEMAN, J.

The appellee, Umbenliauer, sued out an attachment which was levied upon certain goods as the property of S. Kaufman, the defendant in the attachment suit. The Bayonne Knife Company interposed a claim to the property, and an issue was made up under the direction of the court for the trial of the right of property. The court tried the case without the intervention of a jury and found the issue for the plaintiff. When the court, without a jury, determines the issue, the rule is, that if there are no errors in the exclusion of evidence, and the legal evidence received authorized the conclusion, although there may have been illegal evidence admitted, the conclusion reached must be sustained. The goods in question were shipped by claimant to S. Kaufman at Birmingham, Ala., where he had been engaged in the mercantile business. At the time the goods reached Birmingham, the store of Kaufman had been closed by the sheriff, by virtue of sundry attachments issued against him. The goods in question were levied upon by plaintiff while they were in the depot of the railroad, in Birmingham, and which, after the freight charges were paid by plaintiff, were delivered to the officers making the levy by the carrier, without objection. The goods were shipped to Kaufman in the month of October, under an order given for them in March previous. There is evidence tending to show that as soon as claimant learned that the store of Kaufman had been closed by attachments, it directed the carrier to return the goods, but when this direction was given, whether before or after they,had been levied upon by plaintiff’s attachment is not shown, nor has any' fact been proven which tended to show when the order to return the goods was given to thp carrier. The right of stoppage in transitu depends upon the insolvency of the vendee, either at the time of the saleof the property or subsequently and before possession, either actual or constructive, by the vendee. — Smith v. Barker, 102 Ala. 679; Loeb v. Peters, 63 Ala. 243; Benjamin on Sales, (6 Amer. Ed.) § 1229. This principle of law seems to be almost universally recognized. In fact we know of no authority which holds that stoppage in transitu, may be asserted against a solvent debtor. The claimant objected to evidence which if believed established that Kaufman possessed valuable property in Georgia largely in excess of of all his liabilities. The evidence tended to show that the business in Birmingham was conducted by an agent, and that Kaufman himself had not been in Birmingham for some time previous to the levy of the attachment nor since until this trial, and that he had two stores in Georgia. There is no evidence to show that credit was extended to the vendee on the faith of the business conducted at Birmingham, except the single fact of the shipment of the goods to that place. The claimants and vendors are non-residénts of the State of Alabama, and it is fairly presumable that the goods-were shipped on the personal credit of the purchaser, as much so, as on the faith of the business conducted in Birmingham. The court did not err in receiving evidence of the value and ownership of property in Georgia to establish his solvency. We are of opinion that the mere levy of the attachment under the facts- did not defeat the right of stoppage. — Loeb v. Peters, 63 Ala. 243; Harris v. Tenney, 85 Texas, 224; s. c. 34 Amer. St. Rep. 796 and notes ; Benjamin on Sales, (6-Amer. Ed.) § 1067. The failure to establish the insolvency of the vendee was fatal to the claim of the claimant, and the court did not err in rendering judgment for the plaintiff.

After judgment by the trial court, the claimant entered amotion for a .new trial, upon the ground that ho vyas taken by surprise by the testimony of Kaufman as to his solvency; and newly discovered evidence, to the effect that Kaufman .was in fact insolvent at the time ,of the levy .of the attachment, and when the claim to the property. w'as. iñterposed. The insolvency of tho vendee, .being indispensable to.'the exercise ofx the right of stoppage irt tránsitxk, i.'the” vendor intending -to rely upon it must be prepared to establish this fact The attorney for claimant makes affidavit that, hé ■ was- deeeived and misled by Kaufman himself, by statements made by him before he was examined, as to his pecuniary condition. Leaving out. of consideration the denial by Kaufman of this statement, it was the duty of claimant during the trial when the surprise occurred, to have made it known to the court, and that he had been deceived and mislead by his witness, and moved for a mistrial or continuance of the cause. A party canno’t speculate on the chances of getting a favorable verdict, and after losing, urge as, a ground for a new trial, a matter which existed during the trial, and known to movant, and which was waived. — Hoskins v. Hight, 95 Ala. 284; Baker v. Boon, 100 Ala. 622.

As to newly discovered evidence, we are of opinion from tiie affidavit of Kaufman which is not controverted, that an application to the Commercial Agency would have put plaintiff’s attorney in possession of the facts of Kaufman’s business in Georgia. The claimant itself offers no evidence to show that if was ignorant of his business in that State. All legal objections were taken to the introduction of tire affidavit of an attorney residing in Georgia. The jurat is certified to by one who attaches to his name, the letters N. P. A certificate of this character is not self-proving, A notarial seal, conforming to the requirements of the statute, is indispensable. — Ala. State Bank v. Chatt. Door & Sash Co., (18 So. Rep. 74) The judge did not err in overruling the motion for anew trial upon the evidence before him.

Affirmed,