Johnson v. Stockham

This is an appeal from an order of the Superior Court of Baltimore City quashing an attachment for fraud sued out of that Court by the appellant against the appellees, and based upon two promissory notes given by the appellees to the appellant, and upon an open account alleged to be due to the appellant from Grant Stockham, one of the appellees, as agent of his wife, Clara E. Stockham, the other appellee, all of which claims aggregate $450.81.

The affidavit charges only two of the four grounds specified in the statute, viz:

1st. That the appellees have assigned or disposed of, or are about to assign or dispose of their property, or some portion thereof, with intent to defraud their creditors.

2nd. That the appellees fraudulently contracted the debt, or incurred the obligation aforesaid.

The appellees, who are residents of Harford County, Maryland, appeared specially for the purpose only of moving to quash, and specifically deny all the charges of the affidavit as false and fraudulent, and urge further in support of their motion:

1st. That there is no sufficient voucher filed.

2nd. That there is no sufficient affidavit filed.

3rd. That there are are other defects apparent upon the face of the proceedings.

Testimony was taken upon the questions of facts raised by the motion to quash, and these questions will now be considered in their reverse order. The testimony offered to show that the debt was fraudulently contracted, or the obligation fraudulently incurred, is that of the appellant alone, who testified as follows: "Mr. Stockham asked me if I would furnish him fertilizer to grow a crop of wheat, telling me he would deliver the wheat to me, from which I would take the amount of my bill for fertilizer. I told him I would. After this, he said he was disappointed in getting the money for a horse he had sold, with which he had expected to buy seed-wheat, and asked me if I would furnish the wheat on the same terms; I hesitated about doing it, but finally did; he agreed to give me a shorter note on the wheat, which I could use in case of necessity. I delivered it all to him, the fertilizer and the wheat, and got the notes."

In response to a question as to the purpose for which Stockham was to deliver the wheat, he said, "He told me to make me safe on my deal with the fertilizer; besides, that is a part of mybusiness, handling wheat, buying and shipping wheat. He said I could feel perfectly safe, for I would be sure to get the wheat; he said that a number of times." The appellant also testified that without such assurance he would not have sold him the fertilizer, not within the last three or four years. These extracts from the appellant's testimony state his case in its full strength. He and Grant Stockham were the only witnesses as to the purchase of the wheat and fertilizer, and the other articles purchased, and the latter flatly contradicts him, declaring that he did not promise to deliver him the wheat when threshed to secure these purchases, or any of them, but only that he would sell him the wheat to be grown, if he would give him the market price; that no time was fixed for such sale or delivery, and that if the attachment had not been brought, the notes on which it is founded would have been paid at maturity. Nor does the record disclose any conduct or circumstances tending to create a suspicion that the debts were in fact fraudulently contracted, notwithstanding the denial of Stockham. The testimony of the appellant, accepted at its utmost value, and without regard to Stockham's countervailing testimony, would only prove a promise to deliver the wheat when threshed — that he might, out of the proceeds of sale, retain the debt due him, and it is well settled that, in an action for deceit, a false statement, in order to constitute actionable fraud, must be of a material fact, at the time, or previously, existing, made for the purpose of being acted on, and not a mere promise for the future. 5 Amer. and Eng. Ency. of Law, 1st edition, p. 635. The representation to be material must be in respect of an ascertainable fact. Buschman Cook v. Codd, 52 Md. 207;Robertson v. Parks, 76 Md. 132. "Fraud cannot be predicated of a promise not performed, for the purpose of avoiding a bargain of any kind." Fisher v. New York Common Pleas, 18th Wendell, 608. In Long v. Woodman, 58 Maine, 49, the action was to recover damages for inducing plaintiff to convey to defendant certain real estate, in consideration of a loan for two years, defendant promising to execute and deliver to plaintiff a bond for the reconveyance of the land, upon payment of the loan. The Court said, "The gist of the plaintiff's complaint is that a promise made has not been performed. If the promise had been to pay a sum of money, instead of giving a bond, no action for deceit could have been maintained, though the money was not paid at the stipulated time. This case in no respect differs from a broken promise to pay for goods. The goods are delivered upon the expectation that the promise to pay will be performed. The deed was given upon the expectation that the bond would be delivered in accordance with the promise of the grantee." It is true that where one, at the time intending not to pay for goods, induces the owner to sell them on credit, it is a debt fraudulently contracted, and the creditor may reclaim the goods, if they have not passed into the hands of a bona fide purchaser, or he may proceed by attachment under the statute, but there must have been in the mind of the vendee, at the time, an actual intention to cheat, or to do an act the necessary result of which will be to defraud the seller. 8 Amer. Eng. Ency. of Law, 1st ed. 829; 3 Amer. Eng. Ency.of Law, 2nd ed. 202. But this intention is not made to appear by the showing of a mere promise to do some future act, and the subsequent failure to fulfill such promise. Diggs v. Denny,86 Md. 129.

No hard and fast rule can be laid down by which to establish such fraudulent intent, though it may be inferred from the conduct, action and method of dealing adopted by a person on the particular occasion, whether it was fraudulent or not. In the present case Grant Stockham testified, that when the goods were purchased he intended to pay for them, and that he would have done so at the maturity of the notes if he had not been prevented by this attachment. It appears from the record that he gave a note of $100 Nov. 1st, 1897, at ten months, for the fertilizer, and that he gave a note about the same time for about $125.00 for the seed-wheat, on shorter time, according to the agreement, on both of which notes he voluntarily gave his wife as security, and that the last-mentioned note has been twice renewed, and has been reduced from $125.00 to $84, as of June 15th, 1898. The first note matured Sept. 1st, 1898, and the last Oct. 15th, 1898, and the attachment was issued August 5th, 1898. It also appears from an examination of the open account of $266.81, that the first item therein, $57.19, represented adisputed balance on an old account contracted sometime prior to the sale of the fertilizer and seed-wheat, and before the alleged fraudulent misrepresentations. It also appears that $150 of this $266.81 was for fertilizer sold in the spring of 1898 for the tomato crop, and there is not a word in the testimony to show that this was sold upon the promise or faith of the wheat crop. It does however appear, that in payment for this last-mentioned fertilizer, Johnson, on the 6th of July, 1898, received from Grant Stockham a draft upon E.V. Stockham, a responsible canner of tomatoes, who was to purchase the same, and which draft E.V. Stockham accepted, payable when the tomatoes were delivered, and that Johnson thereupon receipted to Grant Stockham the account of $150 as paid by said draft, but that he subsequently issued an attachment in Harford County upon the same debt sued on here, and laid it in the hands of all the tenants of Grant Stockham, who were to deliver these tomatoes, and in the hands of E.V. Stockman also, thus hindering and delaying the delivery of the tomatoes to the canner, and the payment of the draft he had received. From a review of the conduct, actions and dealings of Grant Stockham in this matter, it cannot be seriously contended that we would be warranted in finding that he intended not to pay for these goods when they were purchased, or that he had then any intention to do any act, the result of which would be to defraud Johnson. Accordingly we find that Johnson himself, on cross-examination, acknowledged that he could not say he believed, either at the time of the purchase, or when testifying, that Stockham intended to cheat him out of the value of the fertilizer and seed-wheat, and this admission must effectually dispose of the charge that the debt was fraudulently contracted.

Nor do we find any better ground for the charge that the appellees had assigned, disposed of, or concealed, or were about to assign, dispose of, or conceal, any part of their property with intent to defraud their creditors. The only evidence relied on for this purpose was the execution of the bill of sale of the wheat to O.P. Penning and the public sale of stock on the farm in March, 1898, and these were the only assignments or dispositions of property disclosed by the record as made or attempted. There is no evidence whatever of concealment or of disposition to conceal. The bill of sale to Penning was executed March 3rd, 1898, for a debt of $1,606.64, the bona fides of which has not been questioned. No authority has been produced, and we apprehend none can be produced, for the proposition that the mereexecution of a bill of sale, to secure a bona fide creditor, because it results in giving to the vendee a preference over other bona fide creditors, can be held an assignment or disposition with intent to defraud creditors, within the meaning of our attachment law. Such a conveyance, if made with intent both on the part of vendor and vendee to hinder and delay the other creditors of the vendor and not primarily to discharge or to secure the debt of the particular creditor, would be a fraudulent conveyance under the Statute of Elizabeth, and perhaps might be fraudulent within the meaning of the attachment law, though we are not to be understood as so deciding.

We have examined the cases cited by the appellant to sustain the charge of fraudulent assignment in this case, but none of them are applicable. All of them are cases in which the attaching creditor held a valid lien upon the property conveyed, and in which the effect of the assignment was to defeat the lien, or to prevent the exercise of the right to enforce it. Here the attaching creditor had no lien, nothing even upon his own testimony beyond a bare promise to sell him certain wheat to be thereafter grown, and we have seen that the failure to fulfill such a promise does not constitute actionable fraud. The record shows that the sale of stock on the farm was publicly made after advertisement, and that out of the proceeds Penning received a considerable part of his claim, secured thereout by the bill of sale. No creditor of Grant Stockham appears to have complained of this sale of stock, and Johnson himself only complained that the wheat was then advertised. The wheat was loaded on the vessel by Penning's order, and shipped to Baltimore for his account. This was done in opposition to Stockham's wishes, who wanted to hold it until October, but Penning would not consent, and he received the proceeds of the wheat. In none of these things is there any evidence of any fraudulent assignment or disposition of property or of any purpose or intention to make such assignment or disposition. Having thus determined that the attachment cannot be sustained upon either of the grounds alleged in the affidavit, it is unnecessary to consider the other grounds assigned in the motion to quash.

Order affirmed with costs above and below.

(Decided June 20th, 1899).