McKenzie v. Weineman, Hirschman & Co. , 116 Ala. 194 ( 1896 )

HARALSON, J.

There is no dispute as to the fact, that the goods claimed by the claimants, Weineman, Hirschman & Go., constitute the bill of goods which was purchased by the defendant in attachment, H. Blumberg.

The evidence tended to show, without conflict, that said Blumberg, when he iiurchased the goods from claimants, represented to them that he was worth $8,000, over and above all liabilities ; that he had made a statement of his financial condition to Wm. T. Beedler & Co. of Baltimore, which was correct, and referred claimants to that statement. He thus represented to claimants such statement to be true, showing his financial condition, and as the basis of his credit with them in the purchase of said goods. The evidence further showed that claimants, acting on this representation and reference, before they shipped the goods to Blumberg, wrote to Beedler & Go., and received, the next day, a reply, stating that Blumberg claimed to be worth, net, $7,800. Whether or not Blumberg’s statement accompanied this letter does not certainly appear. But, the claimants, after proving its due execution, offered it in evidence. It was dated June 15, 1895, and the reply of Beedler & Co. to claimants was dated July 27, 1895. The goods were bought and shipped, therefore, as appears, after the latter date. To the introduction of this statement plaintiff in attachment objected, on the ground that it was irrelevant and immaterial, and because it was not shown that claimants ever saw the same before they shipped the goods to Blumberg. The statement purported to show the exact financial condition of the defendant on the day the same was made, which the evidence tended to show was false and fraudulent. It was the one to which claimants were referred as a correct showing of his financial condition on which Beedler & Co. made a statement to claimants that defendant claimed to be worth, net, $7,800,' — less by $52.40 than the amount as shown by said statement. The claimants were entitled to introduce it, with the other evidence, under these circtimstances, as tending to show that defendant had committed a fraud upon them in purchasing said bill of goods.

The claimants also proved by a witness, Kirkland, that he was the clerk of defendant in the year of 1895, and at the time the goods were purchased; that defendant went East in July, 1895, and after his return in August he told witness, about 1st of September, “that it was agreed that he should fail,” and that this agreement was made in May. It was shown by the same witness, that on Sunday belore his failure, defendant packed a lot of goods in two trunks and carried them off, which two trunks were afterwards found in the possession of one Wicks, and these goods, at Iheir invoice price, were worth $400. The defendant testified that he had been approached by said Wicks and one Berham, who proposed to him to fail and they would divide profits with him, but he stated that he had refused the proposition. He was asked by the claimants, “If Wicks did not get a part of the goods just after the failure?” and he said he did. This inquiry was objected to by plaintiff, as calling for illegal and irrelevant evidence, and because it called for something that happened after the defendant’s failure. But there was no error in admitting it. The evidence referred to, tended to show that Wiclcs was a confederate of the defendant in the scheme of his buying on credit and breaking afterwards, to make money, and the fact that Wicks received a part of the goods after defendant’s failure, tended to establish that fact.

Wicks, as shown, was a brother-in-law of the plaintiff, and there were business relations between them. The defendant was asked: “If Wicks did not procure his, Blumberg’s, signature to a power of attorney to B. J. Moody, Esq., so that judgment could be obtained at the first term of the court on McKenzie’s attachments?” and he replied he did. Against the objection of plaintiff that it was irrelevant and immaterial, the court allowed the question and answer. This power of attorney, procured by Wicks under the circumstances disclosed, was some evidence proper for the consideration of the jury, as tending to show Wicks’ interest in the failure, and the agreement deposed to by claimants’ witness, Kirkland, — that there was an understanding between defendant and Wicks, before the purchase of these goods, that defendant should fail in the interest of himself and Wicks. This was competent to be shown, as tending to establish the fraud of defendant in buying the goods from claimants.

The two charges asked and given by the court were, under former decisions of this court, free from error. Maxwell v. Brown Shoe Company, 114 Ala. 304; Hudson v. Bauer Grocery Co., 105 Ala. 200; LeGrand v. Eufaula Nat. Bank, 81 Ala. 123.

Affirmed.