Wm. R. Hart & Co. v. Cooper

Supreme Court of Pennsylvania June 28, 1889

Wm. R. Hart & Co. v. Cooper, 129 Pa. 297 (Pa. 1889)

18 A. 122; 1889 Pa. LEXIS 954

Clark, Green, McCollum, Mitchell, Paxson, Sterrett, Williams

Opinion of the Court

Opinion,

Me. Chief Justice Paxson :

We are asked upon this writ of certiorari to review the proceedings of a warrant of arrest under the act of 1842. It is clear we cannot do so upon the merits. The certiorari brings up nothing but the record, of which the proceedings subsequent to the warrant form ho part. There is no provision in the act of 1842 that the proceedings, or any part of them, shall be filed of record. It follows that if the affidavit was sufficient to justify the warrant, the action of the court below must stand.

The affidavit of George T. Barnes, one of the plaintiffs below, upon which the proceeding was based, contains near the close thereof the general averment that “ the said George P. Cooper and Charles H. Reynolds, doing business under the name and style of Cooper, Reynolds & Co., have fraudulently incurred the debt or obligation for which the above entitled suit is brought, within the meaning of the act of July 12, 1842.” Had the plaintiffs rested upon this general averment, their case would have been stronger than it is as now presented, for, when they proceed to set forth the facts upon which the charge that the debt was fraudulently contracted is founded, it appears that said charge was a mere conclusion of law from facts insufficient to support it. We think it conclusively appears that the fraud was not in the original contract — the order for the iron — -but in its subsequent breach- after the iron had been shipped by the plaintiffs to W. S. Pilling, in care of the defendants at their rolling-mill, near Harrisburg. Granted that the defendants had no right to use the iron until paid for, yet their *308use of it was but a subsequent breach of their original contract; and, while such breach might have involved a fraud, it by no means follows that the original contract was tainted with the fraud; in other words, that the debt was fraudulently contracted. There may be many instances in which the breach of a contract is a fraud, or at least partakes of the nature of a fraud. There is no averment in the affidavit to connect the subsequent fraud with the original contract. Had there been such averment, that the fraud was contemplated and intended when the order for the iron was given, the case would have presented a different aspect and raised quite another question. As it stands, there is nothing upon the record — and we look no further — to support the allegation that the debt was fraudulently contracted.

The proceedings are reversed.

Reference

Full Case Name: WM. R. HART & CO. v. GEO. P. COOPER
Cited By: 8 cases
Status: Published
Syllabus: 1. There is no provision in the act of July 12, 1842, P. L. 339, making the proceedings under a warrant of arrest, subsequent to the issuing of the warrant, a part of the record; and, upon a certiorari bringing up such a record, the Supreme Court can do no more than determine whether the affidavit on which the warrant was based is sufficient to justify it. 2. If a contract creating a debt be free from fraud at the time it is made, a subsequent fraudulent breach of its conditions by Hie debtor, will not convert the indebtedness arising from it into a debt fraudulently contracted, within the meaning of that term as used in § 3, act of July 12, 1842,P. L. 339. (а) An affidavit in support of an application for a warrant ol arrest, averred that the plaintiffs had shipped certain iron, purchased from them by the defendants, to the plaintiffs’ agent, in care of the defendants, upon an agreement with the latter that it should remain in the cars unloaded and in the custody of said agent, until it should have been fully paid for. (б) The affidavit further averred that the defendants, in violation of said agreement and in fraud of the plaintiffs’ rights, had taken possession of said iron and converted it to their own use without paying for it, and had thus fraudulently incurred, within the meaning of the act of July 12, 1842, a debt or obligation for which a suit had been brought against them by the plaintiffs. 3. These averments were at most an averment of a fraudulent breach of a contract not originally tainted with fraud, and, there being no averment connecting the subsequent fraud with the original purchase of the iron, the affidavit was insufficient to justify issuing a warrant, applied for upon the ground that the debt arising from that purchase was fraudulently contracted.