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only month and a half, when he gave L. T. N. S. 664, 84 L. J. Ch. N. S. 259 notice of rescission);

(date had been fixed for purchase of -Thirteen months: Alling v. Van- tract of land. Purchaser had consentder Stucken (1917) – Tex. Civ. App.

Tex. Civ. App. ed to several extensions, and finally, -, 194 S. W. 443 (abstract of title after having set day for completion was to have been shown purchaser and waived right to rescind contract, within thirty days after making of set day two weeks after notice); contract. Abstract furnished did not -Thirty days: Bark-Fong v. Coopshow release of mortgage, which was er (1913) 49 Can. S. C. 14, 16 D.L.R. not shown until thirteen months there- 299, 27 West. L. Rep. 174, 5 West. after);

Week. Rep. 633, 701 (purchase price -Twenty months: Thomas v. Sea- was to be paid in two instalments. man (1915) 195 Il. App. 396 (vendor Neither was paid on date set. About agreed to furnish abstract of title three months thereafter defendant and deliver warranty deed on payment gave notice of rescission if payment of final instalment of consideration. was not made in thirty days). A tender was made twenty months In each of the following cases, the thereafter);

period stated was fixed by notice, and -Four years: McGreevy v. Hodder was held to be an unreasonably short (1912) 8 D.L.R. 755, 4 Ont. Week. N. time to allow for the completion of a 536, 23 Ont. Week. Rep. 699 (plaintiff contract for the sale or exchange of had made default for some four years land, the time fixed by the contract in his payments under agreement to having been waived: purchase land);

-Two days: Hetherington v. Mc-Handel v. O'Kelly (1912) 22 Cabe (1910) 16 Ont. Week. Rep. 154 Manitoba, L.R. 562 (purchaser had (properties were to be exchanged on paid but few of instalments on con- certain day. Parties were still negotract for purchase of land in four tiating two weeks thereafter, when years. In meantime, vendor sold notice was given); land).

-Five days: Fuller v. Maynard In each of the following cases the (1912) 22 Ont. Week. Rep. 809, 3 Ont. period stated was fixed by notice, and Week. N. 1602, 5 D. L. R. 520 (purchaswas held to be a reasonable time to er was in England, or on sea when allow for the completion of a contract notice was given); for the sale or exchange of land, the -Seven days: Evans v. Ozark Ortime fixed by the contract having been chard Co. (1912) 103 Ark. 212, 146 S. waived:

W. 511 (plaintiff entered into con-Two days: Marotta v. Reynolds tract for purchase of tract of land. (1914) 25 Ont. Week. Rep. 833, 5 Ont. There being a mistake as to descripWeek. N. 907 (sixteen days after date tion of land, negotiations were entered set for completion, vendor's solicitor into for correction of mistake, and congave notice to purchaser's solicitor to tinued after day fixed for completion. perform in two days);

Subsequently, but before correction -Two weeks: Stickney V. Keeble was completed, plaintiff demanded ab(1915] A. C. (Eng.) 386, W. N. 6, 112 stract within seven days). R. C. L.


A. F. HAWKINS et al.

West Virginia Supreme Court of Appeals - January 21, 1919.


(- W. Va. -98 S. E. 152.) Attachment — money misappropriated by officer.

1. An officer of a private corporation intrusted with its funds and property, who improperly converts the same to his own use, is guilty of “fraudulently contracting a debt" or "incurring a liability" to such corporation, which will be the basis of an attachment under the provisions of § 1 of chapter 106 of the Code of 1913 (4455).

[See note on this question beginning on page 832.] Assumpsit money wrongfully ap- they should be joined in the conjuncpropriated.

tive; but, where only one ground of 2. The appropriate action to recover attachment is relied upon, and two or money improperly appropriated to his more phases of the same fact which own use by an officer of a corporation constitutes such ground are stated, is assumpsit for money had and re- the joining of such different phases in ceived.

the disjunctive will not invalidate the [See 2 R. C. L. 778 et seq.]

attachment affidavit. Equity - jurisdiction.

[See 2 R. C. L. 833.] 3. Section 1 of chapter 106 of Code - quashing. 1913 (84455), properly construed,

5. An attachment sued out upon the confers upon courts of equity jurisdic- eighth ground given by 1 of chapter tion to entertain suits to recover on

106 of the Code of 1913 (§ 4455), that causes of action ex contractu where

the defendant fraudulently contracted an attachment, supported by proper

the debt or incurred the liability for

which the action or suit is about to be, grounds therefor, is sued out as a

or is, brought, will not be quashed basis of such jurisdiction.

because the attachment affidavit states [See 2 R. C. L. 816; 10 R. C. L. 351.)

that the debt was fraudulently conAttachment affidavit different tracted or the liability incurred. This causes.

is but the declaration of two phases 4. Where an attachment is sued out of the same fact which constitutes the and reliance is had upon two or more basis of the attachment. distinct grounds for support thereof, [See 2 R. C. L. 833, 834.]

Headnotes by Ritz, J.

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APPEAL by plaintiff from a decree of the Circuit Court for Mineral County sustaining a demurrer to the bill and motion to quash the attachment in a suit for the recovery of a claim or debt alleged to have been fraudulently contracted or incurred. Reversed.

The facts are stated in the opinion of the court. Mr. Harry G. Fisher, for appellant: 84 S. E. 788; Royce v. Oakes, 20 R. I. The court erred in quashing plain- 418, 39 L.R.A. 845, 39 Atl. 758; Riley tiff's attachment.

v. La Rue, 20 R. I. 426, 39 Atl. 753; Laidley v. Laidley, 25 W. Va. 525; V. P. Randolph & Co. v. Walker, 78 S. McKinsey v. Squires, 32 W. Va. 41, 9 C. 164, 59 S. E. 856; Larson v. Dawson, S. E. 55; Nelson v. Phares, 33 W. Va. 24 R. I. 326, 96 Am. St. Rep. 716, 53 285, 10 S. E. 398; Ammons v. South Atl. 93; Jewett v. Ware, 107 Va. 802, Penn Oil Co. 47 W. Va. 625, 35 S. E. 60 S. E. 131. 1004.

Hawkins fraudulently contracted The action is one of contract. the debt and incurred the liability

Wilson v. Dawson, 96 Va. 687, 32 S. which is the basis of this suit. E. 461; Mabie v. Moore, 75 W. Va. 766, Crandall v. Bryan, 5 Abb. Pr. 169;

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(- W. Va. -, 98 8. E. 152.) 4 Words & Phrases, 3527; Miller v. authority, converted to his own use White, 46 W. Va. 69, 76 Am. St. Rep. certain goods of the plaintiff. Up791, 33 S. E. 332.

on the discovery of this alleged imEmbezzlement is a ground for at

proper conduct on the part of detachment, and such attachment may

fendant, the plaintiff brought this be sued out in a court of equity for a debt or claim, legal or equitable.

suit in equity, and at the same time Cole v. Aune, 40 Minn. 80, 41 N. W.

sued out an attachment against the 934; Little v. Dyer, 138 ilí. 272, 32 property and effects of the defendAm. St. Rep. 140, 27 N. E. 905; Re ant, upon the ground that he fraudLambie, 94 Mich. 489, 54 N. W. 174; ulently contracted the debt or State v. Georgia Co. 112 N. C. 34, 19

incurred the liability set up. A deL.R.A. 485, 17 S. E. 10; Dunsmoor v.

murrer to the bill and motion to Furstenfeldt, 88 Cal. 522, 12 L.R.A.

quash the attachment were sus508, 22 Am. St. Rep. 331, 26 Pac. 518; Stiff v. Fisher, 2 Tex. Civ. App. 346,

tained, and the suit dismissed. 21 S. W. 291; Rhodes v. O'Farrell, 2

The ground of the demurrer is Nev. 60; Fisher v. Consequa, 2 Wash.

that the plaintiff's demand is a pureC. C. 382, Fed. Cas. No. 4,816; United ly legal one of a tortious nature, not States v. Colt, Pet. C. C. 145, Fed. Cas. cognizable in equity, even when acNo. 14,839; Mabie v. Moore, 75 W. Va. companied by an attachment, and 766, 84 S. E. 788.

the grounds for quashing the atMr. F. C. Reynolds also for appel- tachment are that the facts set up in lant.

the affidavit do not show that the liaMr. Arthur Arnold, for appellee bility was fraudulently incurred, Hawkins: The nature of a cause of action neg

and, further, that the affidavit is atives the existence of such fraud as

void for uncertainty, inasmuch as will warrant attachment, where plain- it alleges that the defendant fraudutiff seeks recovery for conversion of lently contracted the debt or inproperty.

curred the liability, so that it is 6 C. J. 70, 71; Finlay v. Bryson, 84 impossible for the defendant to deMo. 664; Goss v. Boulder County, 4 termine whether it is claimed that Colo. 468; Elkins Nat. Bank v. Sim

he contracted a debt or incurred a mons, 57 W. Va. 1, 49 S. E. 893. A court of equity has no jurisdic

liability. tion because there was no fraud.

The jurisdiction in equity is 16 Cyc. 48; Mabie v. Moore, 75 W.

sought to be sustained solely upon Va, 761, 84 S. E. 788; Swarthmore the ground that it is conferred by Lumber Co. v. Parks, 72 W. Va. 625, § 1 of chapter 106 of the Code (§ 79 S. E. 723; Dunlop v. Keith, 1 Leigh, 6455), giving courts of equity juris430, 19 Am. Dec. 755; McKinsey v. diction of suits where an attachSquires, 32 W. Va. 41, 9 S. E. 55.

ment is ancillary thereto. As this Being in derogation of the common

statute has been construed by this law, statutes authorizing proceedings

court in the cases of Swarthmore by attachment must be strictly construed.

Lumber Co. v. Parks, 72 W. Va. 625, Delaplain v. Armstrong, 21 W. Va.

79 S. E. 723, and Mabie v. Moore, 75 211; Cosner v. Smith, 36 W. Va. 788,

W. Va. 761, 84 S. E. 788, jurisdic15 S. E. 977; United States Baking Co. tion is only conferred upon courts v. Bachman, 38 W. Va. 84, 18 S. Ę. of equity to entertain such suits 382.

when the cause of action is one ex Ritz, J., delivered the opinion of

contractu. In those two cases it is the court:

asserted that the jurisdiction does The defendant was for many

not exist where the cause of action years the treasurer of the plaintiff, is ex delicto. After reviewing the and it is alleged that, during the history of our statute, we think the time he was such officer, of the doctrine of those decisions is cormoney coming into his hands he rect, and that, wherever a plaintiff improperly appropriated large sums has a cause of action upon which he thereof to his own use, and that like- can maintain a suit in form ex conwise, during said time, he, without tractu, he may, if he have grounds


therefor, sue out an attachment and fendant has come into possession of prosecute a suit in equity. If, how- money belonging to the plaintiff. ever, his cause of action is one upon The law will not permit him to deny

which he must sue an implied promise to pay this Equityin tort, equity will

money to the party entitled.” not have jurisdic- This text is fully supported by the tion. The defendant insists that the authorities cited in the note. In the cause of action set up in the bill is case of Walker v. Norfolk & W. R. one ex delicto, while the plaintiff as- Co. 67 W. Va. 273, 67 S. E. 722, this serts that it is in its nature ex con- court held that an action of assumptractu. The charge in the bill and

sit would lie against one who apin the attachment affidavit is full propriates the property of another and complete as to the items of money and property appropriated that case the plaintiff, a contractor,

to recover the value thereof. In by the defendant, and it seeks to

left a pump stored temporarily on recover a judgment for the amount of money so appropriated and the

the right of way of the defendant, value of the property. It is contend

and the defendant appropriated this ed by the plaintiff that this is pure

pump to its own use, and a recovery ly an action on contract; that when for the value thereof in an action the defendant received into his cus- of assumpsit was allowed. Many tody money or property of the plain- cases might be cited to support the tiff, as its officer, there was an im

doctrine that for money wrongfully plied contract that he would account converted or stolen an action of asfor the same and return it when re- sumpsit will lie to recover against quired so to do; and that his failure the wrongdoer. Gould v. Baker, 12 to do this renders him liable in an Tex. Civ. App. 669, 35 S. W. 708; action for money had and received. Howe v. Clancey, 53 Me. 130; Shaw For the defendant it is contended v. Coffin, 58 Me. 254, 4 Am. Rep. that, inasmuch as the allegations 290; Spencer v. Towles, 18 Mich. 9; are that he is guilty of a criminal of- Beardslee v. Horton, 3 Mich. 560; fense in converting this money and Royce v. Oakes, 20 R. I. 418, 39 property to his own use, his acts are L.R.A. 845, 39 Atl. 758; Downs v. necessarily wrongful acts, and that Baltimore City, 111 Md. 674, 41 the suit is no more than an action L.R.A.(N.S.) 255, 76 Atl. 861, 19 for damages for his wrongful con

Ann. Cas. 644. The fact that the duct. It seems to be very clearly

defendant may be guilty of a crimestablished by the authorities that

inal offense in misappropriating the for money misappropriated, or even

fund sought to be recovered in no for money stolen, way changes his civil liability to the Assumpsit

an action of as- plaintiff. If there were no statute sumpsit for money

making the misappropriation of priated.

had and received is these funds criminal, could it be the appropriate remedy. An act of doubted for a moment that there misappropriation in the case of one was an implied contract to repay intrusted with funds in an official them? The defendant would stand or fiduciary capacity raises an im- in no different position from the plied obligation on his part to re- man who had borrowed money from pay such funds, and even where another with an express promise to money has been stolen it is uniform- repay it. The law will not permit ly held that the owner of the money him to secure the funds of another may sue in assumpsit to recover the in his capacity as agent, and then same. In Cooley on Torts, $ 109, use them for himself, without also the author says: “No question is raising a promise upon his part to made of this doctrine, where, as a repay. We are clearly of opinion result of the tortious act, the de- that the cause of action set up in

money wrong. fully appro

(- W. Va. -, 98 8. E. 152.) this case is one ex contractu, and doctrine contended for by him; but

such as gives juris- a reading of it shows that the deAttachment money misap

diction to a court cision is largely based upon an enpropriated by officer.

of equity to enter- tirely different proposition. In that
tain a suit under the

case the party from whom the provisions of $ 1 of chapter 106 of money was sought to be recovered the Code, where an attachment is was not a direct agent of the plainsued out upon sufficient grounds. tiff, but was an employee of the

But the defendant insists that no treasurer of the plaintiff, and the ground for the attachment sued out court held that the extent of the in this case is shown by the

affidavit, plaintiff's rights were fixed by its and, further, that the affidavit is contract with the treasurer, and refatally defective. The affidavit was covery on the treasurer's bond was sued out upon the eighth ground the appropriate remedy for it to specified in § 1 of chapter 106, and

pursue. We are not prepared, howthat is that the defendant fraudu

ever, to approve the doctrine laid lently contracted the debt or in- down in that case that, where a curred the liability for which the deputy or employee of the treasurer action or suit is brought. His con- misappropriates funds intrusted to tention is that the conversion of this him as such employee, the owner of money to his own use, he having such funds cannot sue in an action come into possession of it lawfully, for money had and received to redoes not make him guilty of any cover a judgment for the same. In fraud in incurring the liability or the case of Downs v. Baltimore City, contracting the debt set up in the supra, it is held that the wrongful bill. It is quite true that, so far as conversion of funds by an officer the funds embezzled are concerned, constitutes fraudulently contracting they came into the possession of the an obligation which will sustain an defendant lawfully; so far as the attachment, and the reasoning of goods appropriated by him to his the court in that case seems to us own use are concerned, this cannot to be entirely sound.

. Many cases be said. The allegation in this re- are cited in support of the text at gard is. that he abstracted certain

page 78 of 6 C. J. holding that atgoods from the store of the plaintiff, tachment lies for goods or money used them himself, and charged the embezzled or stolen, or obtained by value thereof to various customers, other species of fraud. The docof the plaintiff, seeking in this way trine of that text is also authority to conceal his own misconduct. But for the proposition that an action of can the fact that he secured posses- assumpsit is an appropriate remedy sion of the funds lawfully make any in such case. difference? So long as he retained The remaining ground for quashthe lawful possession of them as ing the attachment is that the statean officer of the company, there was ment, "fraudulently contracted the no cause of action against him. The

debt,” is joined in the disjunctive cause of action set up in this case with the statement, "incurred the arose when he appropriated these liability." Does this make the atmoneys to his own use, and can it tachment affidavit bad? It is quite be said that the deliberate taking true that, where inconsistent or sepof another's funds held for a par- arate grounds of attachment are ticular purpose, and applying them joined in the same to an entirely different purpose, is affidavit, they must mafidavitnot a fraudulent act? It seems to be joined in the conus that this is clearly fraudulent. junctive, for the reason that if the The defendant cites the case of Goss disjunctive is used the defendant is v. Boulder County, 4 Colo. 468, in not apprised of which one of the support of his contention, and that grounds is relied upon; and then, case does in a measure lay down the too, the affidavit may be said not to


different causes.

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