Virginia-Carolina Chemical Co. v. Wilkins

July 31, 1916. The opinion of the Court was delivered by The appeal is by the plaintiff from two orders of the Circuit Judge — one dissolving an attachment, and the other refusing to stay the dissolving order until this Court could hear and decide the appeal from the first order. The plaintiff contracted with the defendant to sell him 384,000 feet of board and scantlings worth $2,684.

The contract of sale is evidenced by a letter from the defendant to the plaintiff dated November 11, 1915, hereinafter referred to. The defendant confessedly loaded and shipped out of the State three carloads of the lumber, worth $550. The defendant has paid no part of the price of the lumber.

1. The respondent's contention that the order of dissolution is not appealable is not sound. The authority relied upon (Allen v. Partlow, in 3 S.C. 417) is not conclusive. In that case the defendant was allowed to put in "special bail." If the plaintiff is entitled to the remedy by attachment, the denial of it by the Circuit Judge is the denial of a substantial right. Appeals from orders vacating an attachment have constantly been heard by this Court since the Partlow case.

2. The attachment was secured upon the ground that the defendant had shipped the three carloads of lumber and was about to ship the balance thereof out of the State "with intent to defraud his creditors."

The burden was on the plaintiff, not simply to show the shipment, but to prove by testimony facts and circumstances from which a fraudulent intent is reasonably inferable. The bare allegation of the wicked intent will not support the process of attachment; the intent must be proved by testimony. That is so well settled by numerous decisions that it may be assumed as true.

The plaintiff's testimony does not nearly prove a fraudulent intent; it only proves that the plaintiff sold to the defendant, a probably insolvent man, a large amount of lumber on a credit, and trusted to the defendant for payment. By the words of the contract the terms were these:

"All stock to be paid for as fast as each car is shipped and dressed and reloaded. To commence moving stock on yard to be removed and shipped in about 30 days."

The removal of the lumber out of the State is not a circumstance to be weighed against the defendant; the plaintiff's affidavit upon which the warrant of attachment was issued recites that:

"The defendant further agreed to remove and ship the whole of the said lumber within about 30 days subsequent to the date of the execution of the contract."

The defendant confessedly and plainly bought the lumber to remove out of the State. So the only issue of fact is, when the defendant did remove, and did not pay, has it been presumptively proven that his intent was to defraud? A critical examination of the plaintiff's affidavit, upon which the writ was issued, by no means warrants the conclusion that the defendant had a fraudulent intent in removing the lumber. Let that affidavit, the one dated December 28, 1915, be reported.

The plaintiff relies upon eight circumstances to prove fraud, to wit: (1) The failure of the defendant to pay as per contract; (2) the delivery of all the lumber to defendant, and the removal of it from the plaintiff's yard; (3) the whole purchase price was due; (4 and 5) the shipment by the defendant out of the State of three carloads, and not to the terminus which defendant declared to the plaintiff; (6) a short residence by the defendant in Columbia; (7) defendant's declaration to plaintiff that his purpose was to continue shipments without first paying therefor; (8) the plaintiff's manager thought that defendant had little or no financial standing.

The seventh of the circumstances suggests the absence of concealment; the second suggests nothing; the third is the statement of a legal conclusion, drawn from the contract letter, and not certainly correct; the other five do not altogether warrant a conclusion that the defendant had the intent to defraud.

When the defendant dressed, reloaded, and shipped a car of lumber he was due to then pay for it, but his failure to pay by no means raised a presumption of fraud, nor did his reported lack of means.

The defendant's declaration that he had consigned the lumber to some point in Virginia, and his subsequent declaration that he had consigned it to Connecticut, may be inconsistent. But the proof does not show that either is false; the words of the plaintiff's affidavit thereabout are:

"That deponent has subsequently learned that said cars of lumber were shipped to points within the State of Virginia and not to Connecticut."

That is hearsay, and proves nothing.

We have not considered the defendant's testimony at all, but only the plaintiff's. The affidavits of the plaintiff, submitted in reply, add nothing to that made on December 28, 1915. The Circuit Judge was clearly right to hold that aprima facie case of fraud had not been proven by the plaintiff.

3. The appellant further contends that the Circuit Judge ought to have ordered the attachment to remain of force until it could be determined here if the order of dissolution was right, for he says if this Court should hold that the attachment was lawful, and if the officers should have in the meantime released the property, then the plaintiff's rightful security for payment will have been gone. That is a moot question; if the property which was attached has been released no judgment now can restore the status; if the property has not been released, then it must now be released, for we hold the attachment ought not to have been issued.

Whether or not an appeal from an order of dissolution does operate to stay actual dissolution until the appeal is heard need not now to be decided, and ought not, for the facts do not make that issue.

4. There remains yet one other issue made by the appeal. The Circuit Court held that the written undertaking required by the Code to be made by the plaintiff before the issuance of the writ of attachment was not properly made. The defect alleged is that the undertaking was signed thus:

"Virginia-Carolina Chemical Company by W.S. Neil. its attorney in fact."

That also now comes to be a moot question; and it is not necessary or proper to decide whether there should have been proof that Neil was in truth the attorney in fact of the plaintiff to make the bond, for the bond goes with the writ, and we hold the writ ought not to have been issued.

The order dissolving the attachment is affirmed.