The defendants in the above entitled cause, Archie V. Shipman, Robert V. Shipman and Mildred J. Shipman, co-partners doing business as Shipman Manufacturing Company, have applied to the court for an order to quash the writ of attachment obtained by the plaintiff, and to vacate a levy thereunder made, urging for their success the following reasons:
(1) Because the affidavit, upon the basis of which the order for the writ of attachment was issued, fails to set forth sufficient facts to show fraud.
(2) Because the alleged acts, promises and representations of Walter A. Huff are not binding upon the defendants, Archie V. Shipman, Robert V. Shipman and Mildred J. Shipman, co-partners doing business as Shipman Manufacturing Company.
(3) Because the affidavit fails to set forth any claim against the defendants, Archie V. Shipman, Robert V. Shipman and Mildred J. Shipman, co-partners doing business as Shipman Manufacturing Company.
(4) Because at the time of the levy under the writ of attachment, the goods and merchandise, which were attached, were in transit in the custody of Denver-Chicago Trucking Company, Inc., a common carrier.
(5) Because the goods and chattels, which were levied upon, are the goods and chattels of these defendants, and the affidavit fails to set forth any claim against these defendants.
(6) Because the goods and chattels which were levied upon are the goods and chattels of these defendants, and the plaintiff has no claim against these defendants.
Since challenge is made in some aspects to the plaintiff's factual contention as disclosed by the affidavits, it becomes necessary to harvest, from all the affidavits, the facts for a proper disposition of the motion.
It is admitted that the defendant company, through Walter A. Huff, the other named defendant, entered into a written contract with the plaintiff for the sale and purchase of 100 vending machines at $29.50 each, and paid on account thereof the sum of $1,450, the balance of which was to be paid upon delivery. Simultaneously with the execution of that agreement, Huff entered into a written agreement with the plaintiff to secure locations for the machines within two weeks from the making thereof, which was on September 15, 1950.
The defendants seek to avoid the conduct of Huff on the grounds that he was (a) an independent contractor, (b) that if he was the defendants' agent, his authority was limited by an expression contained in the written agreement between May and Shipman, of which the plaintiff had knowledge.
Was Huff's conduct fraudulent, and if so, is that fraud imputable to Shipman? I have no hesitancy in determining that the conduct of Huff patently discloses that he practiced a fraud upon the plaintiff. This result is readily reached from the fact that the inducement for the plaintiff to execute the agreement between him and Shipman was the written understanding that Huff would secure locations for the machines within a fixed period of time. The plaintiff made several inquiries of Huff to ascertain if the ...