Stewart v. Katz

30 Md. 334, 1869 Md. LEXIS 36

Opinion

Miller, 3\,

delivered the opinion of the Court.

On the 30th of October, 1866, the appellants sued out of the Superior Court of Baltimore city, an attachment under the Act of 1864, ch. 306, against the property and credits of David Long. The sheriff seized and took under the writ certain goods as the property of Long, and the appellee appeared and moved to quash the attachment — 1st, for defects apparent on the face of the proceedings, and 2d, because he was the owner of the property, and Long then had and now has no interest therein, or right or title thereto. The motion to quash ivas set down for hearing with leave to all parties to take testimony upon the usual notice. Proof was taken relating exclusively to the validity of the bill of sale of the 23d of October, 1866, under which the appellee claimed title to the property. Upon the hearing of the motion the Court quashed the writ upon the sole ground of the insufficiency of the affidavit required by the law to be made before the attachment shall be issued. From the order thus quashing the attachment, the present appeal was taken. The alleged defects upon the face of the proceedings relate mainly to the sufficiency of the affidavit and the validity of the bond. These we shall'consider in their order:

1st. The law requires that the plaintiff or some person in his behalf, shall make an affidavit stating the indebtedness of the defendant to the plaintiff, and that the plaintiff knows or has good reason to believe the defendant is about to abscond, or has done certain specified acts or some one of them. The present affidavit states that the affiant, Rice, appeared “on behalf of Alexander T. Stewart, Francis Warden and George Fox, partners, trading under the name of A. T. Stewart & Co., and made affidavit that David Long is bona fide indebted to the said A. T. Stewart & Co., in the sum of $4,051.09, over and above all discounts, and that the said A. T. Stewart & Co. have good reason to believe,” &c. The alleged defect is said to consist in this, that the witness has not sworn that the individuals constituting the firm of “A. T. Stewart & Co.” or the plaintiff's, but “A. T. Stewart & Co.” in their aggregate capacity and under their trade or partnership name, have good reason to believe, <fec. And it is argued in support of the objection, that a trade name cannot have beliefi which refers to an operation of the mind, and that no indictment for perjury could be framed on such an affidavit. This objection reaches the extreme point of attenuation, and is, in our judgment, not warranted by any of the decisions which have enforced the strictest conformity of attachment proceedings with the requirements of the law. The names of the individuals on whose behalf the affiant appears are stated, and it is then stated that these individuals compose a certain firm, known by a certain name, and the witness then swears to the indebtedness of the defendant to the said firm, and that said firm has good reason to believe, ka. From this it is impossible to doubt who were meant by the terms “ the said A. T. Stewart & Co.,” or that the conscience of the affiant was pledged to the averment that the individuals previously named as constituting the firm, have good reason to believe the facts sub sequently stated. It was not necessary that these names should be repeated each time there was occasion to refer to them, but reference to them by the other and briefer name or alias, by which they were known, was sufficient. A partnership is not a being distinct from the individuals who compose it, and when it is spoken of by its firm name, and as the said partnership and the members which constitute it have been previously in the same instrument specially mentioned, no other meaning can be given to the reference than to the individuals thus named. We cannot sustain such an objection. The law may be a harsh one, and capable of being converted into án instrument of oppression and liable to great abuse; but the Courts must give it effect so long as it remains the law of the State. No other objections to the affidavit have been made or suggested, which require notice by this Court.

2d. The law also says that before the attachment shall issue, a bond shall be taken from the plaintiff, or some person on his behalf with security, to be approved by the clerk, with the prescribed condition, and if any attachment shall be issued without a bond taken as aforesaid, it shall be illegal and void. Under this, the sufficiency of the sureties is a matter left entirely to the judgment of the clerk, but the legal validity of the bond itself, is a subject for review on this appeal. The objection is, that it is not the bond of Stewart, Warden and Fox, because their names are not signed to it by Rice, by authority under seal to that effect or otherwise, and that it is not the bond of Rice, because he signs it as agent, and did not intend thereby to bind himself. If both views are ■ sound, the objection is certainly well taken, for the securities could not be held responsible on such an instrument. We agree for the reason stated, that Stewart, Warden and Fox are not bound as obligors, but from a careful examination of the instrument, we are satisfied it is the bond of Rice, binding upon him individually. The law upon this subject is correctly stated in Abbey vs. Chase, 6 Cush., 54, and Clark’s Lessee vs. Courtney, 5 Pet., 350, and the authorities there cited. Iii tlie first case the instrument purported to be an agreement between the Hadley Falls Company, by their agent, of tlia first part, and Abbey, of the second part. And the parties throughout are spoken of as the party of the first part and the party ' of the second part. In the attesting clause, it is stated “ the parties hereunto” have set their hands and seals, &c., and it' is signed and sealed by Abbey, and by John Chase, “Agent.” It was sought to make Chase personally responsible on this agreement, and the Court held his liability must depend on the legal effect of the terms of the contract. “ If the agent,” say the Court, “ employs such terms as legally import an undertaking by the principal only, the contract is the principal’s, and he alone is bound by it. But if the terms of the contract legally import a personal undertaking of the agent, and not of the principal, then it is the contract of the agent, and he alone is answerable for a breach of it.” In applying this doctrine to the case before them, the Court based their conclusion that the agent was not personally bound, upon the fact that the instrument purported to be a deed inter partes, namely, the Hadley Falls Company of the one part, and Abbey, of the other part, and that the acts of the plaintiff in signing and sealing it, and of the defendant in signing his own name, adding thereto the word “ agent,” and affixing his own seal, was done as the acts of the parties before named as parties to the instrument. But they expressly held that if any words had been inserted expressing or legally importing a personal undertaking on the defendant’s part, he would have been personally bound even though the instrument was prepared as a deed inter partes. In the latter case, where the language of the instrument was, “ I, the said Casey L. Clarke, attorney, as aforesaid,” &c., “ do hereby relinquish,” &c., and the attesting clause was, “ In witness whereof, the said Casey E. Clarke, attorney as aforesaid, has hereunto subscribed his hand and seal,” &e., and it was signed “Casey L. Clarke, (Seal,”) the instrument was held to be the deed of the attorney, and not of the principals. In the bond before us, it is stated in the obligatory part, “ that we, Henry H. Rice, Ag’t' of Alex’r T. Stewart, Francis "Warden and George Fox, trading as A. T. Stewart & Co., Alexander Murdoch and Charles W. C. McGoy, all of Baltimore city, in the State of Maryland, are held,” &c., “ to which payment we bind ourselves, our heirs, executors, and administrators firmly by these presents.” Then comes a recital of the intent to issue the writ, and the condition, and the attesting clause is : “ In witness whereof, we have hereunto set our hands and seals, this 30th day of October, 1866,” and it is signed “Henry H. Rice, Ag’t, (Seal,”) and also signed and sealed by Murdoch and McCoy, the sureties. We cannot doubt that the legal import of this language is to bind Rice, personally. The mere description of Rice, as agent for parties who were non-residents of the State, and the expression in the recital that the above “ bounden,” Stewart, Warden and Fox, were about to sue out the attachment, cannot have the effect of- setting aside the legal force and operation of the other controlling terms of the instrument which plainly import personal responsibility on his part. We are clearly of opinion the bond is sufficient.

3d. It has also been objected that the account produced showing the indebtedness of Long, is not such as the law requires, because it only shows the amount claimed, and is not sufficiently explicit and certain in its items and details. An examination of it, however, shows that it is wanting in none of these particulars. It is made out in the mode usually adopted by merchants engaged in extensive business, and is perfectly intelligible.

This disposes of all objections made or suggested, based upon alleged defects apparent on the face of the proceedings. The other reason assigned for quashing the writ goes to matters dehors, and relates to the validity of the bill of sale by which the appellee claims title to the property attached. A large mass of testimony has been taken on this subject, but, as we have stated, the judgment below was based exclusively upon the insufficiency of the affidavit. Upon the important question of the validity of this deed, the parties have never had the benefit of the Court’s consideration and judgment. It is true, the question is open to us for decision on this appeal. Such questions may be raised on motion to quash, and heard before the Court, in this summary mode, on evidence produced by the parties, if they elect so to try them. This was decided in Howard vs. Oppenheimer, 25 Md., 350, but in that case the better practice of having them submitted to a jury was strongly commended, and looking to all the circumstances of this case, we think the proper course to be pursued, and the one which will best subserve the ends of justice, is to reverse the order appealed from, for the reasons already stated, without expressing any opinion upon the validity of the deed, and send the case back under a prooedendo, in order that the parties may have again the option to submit the question to a jury, or have it heard and decided by the Court upon the evidence now in the record, and such other testimony as they may chose to introduce under the Court’s order and direction.

(Decided 12th March, 1869.)

Older reversed and prooedendo awarded.