Opinion.
Arnold, J\,delivered the opinion of the court:
The verdict for plaintiffs below was for $172, and the judgment should not have been for a greater amount than this sum and costs. The court refused to instruct the jury for the defendant that “ If they believe from the evidence, the plaintiffs, prior to any dealing with the defendant, had knowledge and consented to the defendant merchandizing with a deed of trust held upon his stock by a third party, that they will be warranted in finding that the attachment was wrongfully sued out.”
The same and the only witness that proved the retention of the property by Moody and his power to control and dispose of the same after the trust deed was executed also testified that the plaintiffs had notice at the time they commenced dealing with him that he was doing business with a trust deed on his entire stock of goods similar to the one on his stock at the time the attachment was sued out. With such notice the plaintiffs had no grounds for attachment shown by the record unless it was afforded by the fact that the first trust deed had been canceled and another with different terms in some respects had been executed on the stock of goods and other property. On the facts of record, the intent with which the last trust deed was executed was an important element in determining whether the attachment was rightfully or wrongfully sued out.
The legal effect of the notice alleged to have been given to plaintiffs through their agent as to the existence of the first trust deed should have been submitted to the jury by instructions from the bench.
Reversed.