O'Neil v. New York & Silver Peak Mining Co.

Opinion by

Beatty, C. J., Johnson, J.,

concurring,

Lewis, J.,

dissenting.

The plaintiff in this ease brought suit against the defendant, a corporation, for the price of certain brick alleged to have been manufactured under the provisions of a special contract with the defendant. At the time of bringing suit the plaintiff also sued out an attachment against the defendant’s property. The suit was commenced, and the attachment sued out on the sixteenth of October, 1866, but the affidavit of indebtedness, etc., had been made on the fifth of October, some eleven days before the suit was brought.

The answer of defendant denies having entered into the alleged contract, and on the trial defendant also relied on the 6 2d section of “ An Act in regard to Conveyances, etc.,” which provides that certain contracts for the sale of chattels shall be void, unless a note or memorandum of such contract shall be made in writing, etc. The defendant moved to quash the attachment, because it was irregularly issued on affidavit made some eleven days before the suit was commenced. This motion was overruled. The case was subsequently tried, and plaintiff had judgment. The defendant moved for a new trial, and failing in that motion, appealed to this Court from the order overruling both motions, and from the judgment.

When the cause was called for trial, the defendant’s attorney submitted an affidavit showing the absence of a material witness and what he expected to prove by said witness. The affidavit was sufficient, so far as regards diligence, materiality and the likelihood of the witness being present within thirty days, the time for which a continuance was asked. The plaintiff consented to admit the absent witness would swear to the facts stated in the affidavit for continuance. Upon this admission, the Court refused a continuance, to which ruling defendant excepted.

We think, under the statute, the Court certainly had the discretion, if it was not an absolute duty, to deny the continuance under this state of facts.

The next point made by defendant is, that the Court refused to strike out a part of plaintiff’s testimony, in which he states the contents of a certain written order (the order itself not being produced) given by the managing agent of the corporation to him.

There is no foundation for this exception. The testimony of plaintiff is, that the agent offered to give him an order of a certain character; that he took it and passed it to a certain party. He did not attempt to state the contents of the order. It could not be inferred from the evidence that he ever read the order. But the order was of no consequence, and whatever its contents, it did not affect the case in any way.

The evidence of W. A. B. Cobb was confirmatory of that of the plaintiff, and contradictory of that of Catherwood, a witness for defendant, and therefore was properly received by the Court.

The contract, as alleged and proved, was not a contract for the sale of brick, but a contract for the manufacture of brick for the defendant at a place and out of clay selected by defendant’s agent. This case does not come within the provisions of the 62d section of our Act in regard to Conveyances, etc., which requires contracts for the sale of goods to be delivered in future to be in writing. There has been considerable conflict of decisions as to whether a certain class of cases should be treated as contracts of sale or contracts for the manufacture of certain articles. Eor instance, if a miller, engaged regularly in the manufacture of flour, should contract to deliver the next hundred barrels of flour he may manufacture, it is rather difficult to determine whether such a contract is to be treated as a contract to manufacture one hundred barrels of flour or a contract to sell one hundred barrels. Probably, if the contract did not induce any change in the conduct of the miller, but he merely proceeded with his regular business, intending, under his contract, to deliver or sell the first product of his mill, this should be treated as a sale, because the manufacturer has not changed his condition, business or circumstances on account of the contract. But if he had contracted to manufacture and deliver some peculiar article out of the regular routine of his business— for instance, a hundred barrels of kiln-dried corn meal, requiring the purchase of new material and the introduction of new appliances for the drying of the corn, this undoubtedly would, under all the decisions, be held a contract not merely for the sale but rather for the manufacture of the corn meal, and not within the statute. So too this contract to manufacture brick, not at a regular brickyard of plaintiff’s, but at a spot selected by defendant, -was a contract not of sale but of manufacture.

The fact that plaintiff placed in the kiln more brick than would fill his contract, made no difference. The main object and motive of the plaintiff was, if we are to believe his testimony, to carry out his contract. His having made more brick than his contract called for, whether it was for the purpose of being sure to have enough to fulfill the contract, or for the purpose of sale to others, could make no difference.

That part of Catherwood’s testimony which related to a difficulty between plaintiff and Dr. Portz about fire brick was properly excluded. It has nothing to do with this case.

As a general rule, when a person undertakes to manufacture an article for a given purpose, there is an implied warrantee that it will answer the purpose for which it is manufactured. But when the party for whom an article is manufactured directs the mode of construction, or the material out of which the article is to be made, the workman is only responsible for skill on his part. He is not responsible for % defect in material; or the result of methods of construction which he does not control. In this case the same testimony which sustains the contract shows that the place of manufacture, and the clay out of which the brick were to be made, was selected by the defendant’s agent. If, then, the brick made were worthless for the purpose intended, the workman was not responsible, unless for some fault on his part. Nothing was attempted to be shown on this head. There is no complaint that the brick were not well made, but merely that they were worthless as fire brick. This was most probably the result of the character of the clay used, and not of defective manufacture.

The instruction, that if the jury believed the brick were worthless they should find for defendant, was properly refused for several reasons. Pirst — There was not a particle of proof to show that they were worthless for ordinary purposes. Second — It was not by any means satisfactorily proved that the bricks were ever expected or intended to be fire bricks by the contracting parties, and if they were, it was not shown that the failure in this respect was the plaintiff’s fault. The testimony of plaintiff and of Catherwood are at issue on almost every point. If we believe the plaintiff, his case was fully made out. If, on the other hand, we believe Catherwood, plaintiff had no cause of action. Plaintiff is certainly corroborated, to some extent, by the testimony of Cobb. The jury seemed to have believed plaintiff, and there is no reason for disturbing the verdict.

The only remaining point to be considered is the action of the Court below in refusing to quash the attachment. Our law authorizes the plaintiff at the time of issuing summons, or at any time afterwards, to procure an attachment upon the filing of an affidavit showing the existence of certain facts when the attachment is applied for. The question is, did the affidavit, filed on the sixteenth of October, show the existence on that day of the debt sued for ? Appellant contends that it did not. The affidavit, says appellant, “ only shows that such a debt did exist on the fifth of October, the day it was made.” “ Between the fifth and the sixteenth it might have been paid.”

This is a rather embarrassing question. Greenleaf, in treating on the subject of legal presumption, (see Vol. 1st of Greenleaf on Evidence, Sec. 41) says: “ When, therefore, the existence of a person, a personal relation or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” If we are to be guided by this rule, the affidavit having shown the debt to be existing and past due on the fifth of October, the legal presumption would follow that it remained due on the sixteenth of October. If a debt was shown to exist, but not due, after the day of its falling due, there might perhaps arise a legal presumption that the debtor had complied with his contract and paid, as per agreement. But when it is once established that there has been a breach of contract and the debtor has failed to pay at the right time, we are inclined to think there is a fair legal presumption arising that the debt continues due and unpaid until something is shown to the contrary, or there is such lapse of time as to raise a contrary presumption. Eleven days would not be sufficient for such presumption.

The affidavit, aided by this legal presumption, was sufficient to make a prima facie case for the issuance of an attachment.

Construed with reference to the legal presumption above referred to, it did show the existence of a debt due from defendant to plaintiff at the time of the issuance of the attachment. This was a literal compliance with the terms of the statute. It is true the evidence was not so satisfactory as it would have been if the affidavit had been made simultaneously with the issuance of the writ.

The remedy by attachment is a harsh one, and it may be claimed that a plaintiff should not be allowed to avail himself of it unless he makes an affidavit showing the facts upon which he bases his application for the writ with as much certainty and precision as such facts are capable of being shown by his own testimony — that defendant should be protected from the issuance of so harsh a writ upon loose and uncertain showings.

When a Court is in doubt about the construction of a statute, it will undoubtedly look to the effect to be produced by one or the other of two constructions, and endeavor to construe the law so that its operation may be beneficial and not oppressive. If, however, we look to the beneficial effects to be produced by a construction of this statute, we think such construction as would sustain an attachment issued ■ under an affidavit such as was filed in this case would be decidedly more beneficial than one requiring the affidavit to be made of the same date as the application for the writ. The plaintiff is only required to make a prima facie case for the issuance of a writ. His own affidavit without any additional proof is sufficient. In practice it may frequently happen, and doubtless does often happen, that a plaintiff swears that defendant is in debt to him, when in fact there is no such debt existing. But we apprehend it would seldom if ever occur, that a party having a just debt against another would make the necessary affidavit for an attachment, collect the debt after the affidavit was made, and then sue out the attachment after his debt had been paid. If such a case should ever arise the defendant would still have the undertaking, which any attaching creditor has to file, to resort to for indemnity.

In large counties, such as we have in this State, it would frequently be impossible for a creditor to make the affidavit for an attachment and send it from his residence to the county seat in one day, consequently a creditor living in some of the remote parts of the State would be compelled to travel several hundred miles in order to get an attachment, if we require the affidavit to be of the same date as the writ. We think it not necessary to make such rigid requirements of attaching creditors. If the attachment is improperly issued, the defendant may have it quashed on motion.

In some of our sister States attachment is, under certain circumstances, a means adopted for giving jurisdiction to the Court over the persons of litigants. The attachment of property is a substitute for the summons or personal notification of defendant to appear and answer. In such case the Courts have always required a rigid compliance with the law to confer jurisdiction on the Court. But when the attachment is issued, not to obtain jurisdiction, but merely to enable the Court to enforce its judgment, the Courts have been much more liberal in sustaining attachments. In New York, under the code, it has been frequently held that even when the affidavit for an attachment was insufficient, the plaintiff would be allowed to amend after motion made to dismiss for defect in original affidavit. It is true these rulings have not been uniform, but that is the general current of the New York authorities. (See case of Freeman et al. v. David Walter, 13 Howard Practice Reports, 348, and cases therein collated.)

In this case the affidavit was not, as we think, insufficient; and even if it was, according to the case cited it might have been amended. It appears to us that this rule allowing amendments to affidavits is a good one for this reason. The attachment may be issued not only at the commencement of a suit, but at any subsequent time before judgment. If the attachment is dismissed for informality in the affidavit, the plaintiff can immediately make a more formal affidavit and have the same goods again attached. The effect then of dismissing the attachment would be only to put the plaintiff to some costs, but not to afford any relief to defendant. Courts are always reluctant to do an act which makes costs for one party, but affords no relief to the other.

Drake on Attachment lays down the rule positively that an affidavit prior in date to the day of the issuance of the attachment is sufficient. (See Sec. Ill, and authorities therein cited.)

He also thinks that a motion to quash an attachment because of a defective affidavit should not be sustained, unless the plaintiff, after opportunity afforded, fail to make one more perfect.

The judgment of the Court below is affirmed.

I concur in the judgment.