Ruthven v. Beckwith & De Groat , 84 Iowa 715 ( 1890 )

UPON REHEARING.

Given, J.

I. One of the grounds upon which the .attachment was sued out was “that the defendants are about to remove permanently out of the county, and have property therein not exempt from execution, and "that they refuse to pay or secure the plaintiff.” The court instructed the jury that as neither Beckwith nor De Groat were residents of the county at the time the attachment was sued out, and as the plaintiff made no ■demand upon the defendants for payment or security after he took up the note and before the commencement of this action, said ground for the attachment was unauthorized, and the plaintiff had no right to an attachment upon this ground. The theory of this instruction is that J. M. Beckwith and Z. De Groat, were the only parties defendant to the action, and, as neither resided in the county, there could be no. removal out of the county such as to entitle the plaintiff to an attachment on that ground. Under the law that a partnership is a legal entity, it might sue and be sued, and for many purposes is as distinct from the persons composing it as they are from each other. The right to sue the partnership as such is not questioned, nor is the jurisdiction of the court wherein the action was brought. If the partnership may be sued, it must have a residence, — a place where it can be sued. It appears without conflict that this partership was engaged in the business of buying, baling and shipping hay for sale; that its only place of business was at Ruthven, in Palo Alto county; and that the note in suit was executed and payable at Ruthven, in connection with said business. It is provided in the statute that, “When a corporation, company- or individual has an office or agency in any county for the transaction of business, any suits growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located.” Code, sec. 2585. In Fitzgerald v. Grimmell, 64 Iowa, 261, wherein this section was under, notice, it is said: “A partnership is. a legal entity, known and recognized by the law, and for jurisdictional purposes it may be considered as having a residence in every county in which it docs, business, though neither partner resides in such county,”- To hold otherwise would .give to partnerships an immunity from attachments that is not accorded to natural persons. We think this partnership is shown to have been a resident of the county of Palo Alto, in the sense in which partnerships may acquire residence, at the time the attachment was sued out, and therefore could • have removed permanently out of the county, so as to entitle its creditors to attachment against its property.

II. Another requisite of this ground for attachment is that, “they refuse to pay, or secure the plaintiff.” According to the instructions, plaintiff was not entitled to an attachment on this ground, because there was no demand or refusal after he paid the note to the bank. It is true there was no money due to the "plaintiff until he paid the note upon which he was surety, but the defendants did owe it to him that they secure him as their surety by paying the note at its maturity or by securing his release in some other way. The evidence tends. to show that, at or soon after the maturity of the note, the plaintiff demanded of Mr. Beckwith that they pay or secure the note to the bank, so as to release him, which he positively refused to do; also that the plaintiff drew a draft on Mr. De Groat for the amount of the note and had the bank at Ruthven send it through the Preston bank, and at the same time mailed a letter to Mr. De Groat, explaining to him fully why the draft was sent, and saying that he wanted this note paid. The draft was returned not paid, and the letter, though received, was not answered. It was after these refusals upon the part of both the defendants to secure him that the plaintiff paid the note and commenced this action. Such refusals were sufficient to entitle the plaintiff to an attachment so far as refusal to secure is concerned. "We think the court erred in not submitting this ground of attachment to the jury, and in giving the instructions with reference thereto. As for this reason the judgment of the district court must be reversed, we will only notice such of the other questions discussed as may arise on a re-trial.

III. In directing the jury as to the measure of recovery of actual damages, the court instructed that it was the duty of the sheriff to take reasonable and ordinary care of the property while in his possession, and that, if he failed to take such care, and by reason thereof the property was injured or destroyed, the plaintiff would be liable to the defendants therefor on the attachment bond, if the attachment was wrongfully sued out. This statement of the law meets the approval of the majority of this court. In the mind of the writer, damages resulting from negligence of the sheriff are- not within the contemplation or conditions of the bond, and are not recoverable against the plaintiff thereon. For the views of the court on this subject, see Blaul v. Tharp, 83 Iowa, 665.

IY. Several exceptions were taken by the plaintiff to rulings admitting and rejecting testimony. As the same questions may arise on a re-trial, we proceed to notice them. Testimony as to the financial condition of the defendants, though not known to- the plaintiff, was admissible as bearing upon the charge of intent to defraud creditors. The defendant De Groat was asked what arrangements, if' any, they had made prior to April 21, 1888, to dispose of their property or convert it into money; to which he answered that they had no arrangements, only buying and pressing hay and getting it to market, and returning the money to pay debts. This question did not call for the intention or purpose of the defendant with respect to the property as in Selz v. Beldin, 48 Iowa, 452. The answer is in effect that they had no arrangements, only in the usual course of trade. We think the plaintiff’s objection was properly overruled.

The hay having been sold by the sheriff, the measure of the defendants’ recovery therefor was its value at the time it was taken, less the proceeds of sale credited on the indebtedness. Testimony as to the effect the weather had upon the hay after it was taken was immaterial. If. the price at which it was sold was called out as tending to show its value when taken, then testimony as to the effect of the weather was admissible.

It was proper to inquire whether the press would depreciate more by being used than by standing idle, and, as its rental value was material, it was proper to show its capacity by showing the number of tons per day pressed in it after' its release. What is spoken of as ‘‘distillery hay” was included in the levy,, and proof of its value was proper. The testimony of Beckwith as to delays in getting cars and shipping hay was admissible as showing the general course of business as bearing upon the question of intent to defraud. Mr. Giddings was - permitted to testify, over the plaintiff’s objection, to the receipt and contents of a letter from Mr. Bartholomew, saying that Mr. De Groat was good for five or ten thousand dollars, upon the statement of counsel that they expected to show that the contents of this letter were made known to the plaintiff. The defendants failed to show that this letter came to the knowledge of ■ the plaintiff, and the plaintiff omitted to thereafter call the attention of the court to that fact. As this need not occur on a retrial, we do not notice it further. The plaintiff’s offer of *a notice served upon the sheriff by Rosecrantz claiming the hay press, was immaterial, as it did not occur until after the attachment was sued out.

For the reason stated in the second paragraph of this opinion, the judgment of the district court is BEVEBSED.