Anderson v. Sloane

40 N.W. 214, 72 Wis. 566, 1888 Wisc. LEXIS 269

• Court: Wisconsin Supreme Court
• Decided: November 8, 1888
• Status: Published

Opinion

Taylor, J.

The principal grounds of error alleged are as follows: (1) It is claimecbthat the judgment should have been in favor of the defendants, for the reason that the judgments and executions upon and by virtue of which the plaintiff’s goods were seized were simply voidable and not void, and until set aside were a perfect justification to the sheriff executing the same and to the defendants in whose favor they were issued. (2) That upon the question whether there had been an accord and satisfaction by agreement between the plaintiff and defendants for any damages the plaintiff might have suffered by the seizure of his goods upon the executions, if thejr should be held void, the verdict should have been in favor of the defendants. (3) That the rule for assessing the damages, if the plaintiff wasj entitled to recover any, as submitted to the jury by the learned circuit judge, was erroneous and contrary to law.

Upon the first point made by the learned counsel for the defendants, we think the circuit court ruled correctly. The fact appeared upon the trial that these judgments, and the executions issued thereon, had been set aside by the circuit court, either because they were void or voidable, loug before this action was commenced. In such case it is immaterial for what cause they were set aside. When once set aside, they can no longer be set up by the party causing the same to be entered and issued, as a defense for anything done under-them. Whether they would protect the sheriff for what was done bjr him before they were set aside and vacated, is not a question in this case. It clearly appears from the opinion of this court in Sloane v. Anderson, 57 Wis. 123, that the judgment and execution in that case was set aside because the judgment was entered for more than there was due to the plaintiffs, and because there was no sufficient affidavit of indebtedness as required by the statute. These defects in the proceedings have always been held sufficient grounds for setting aside a judgment on confession in this court. See Dilley v. Van Wie, 6 Wis. 206; Blaikie v. Griswold, 10 Wis. 293; Second Ward Bank v. Upman, 14 Wis. 596; Van Steenwyck v. Sackett, 17 Wis. 645; Remington v. Cummings, 5 Wis. 138, 142. The courts of this state, on motion, exercise, an equitable supervision and control over judgments entered upon warrants of attorney. Reid v. Case, 14 Wis. 429; Jones v. Keyes, 16 Wis. 562; Brown v. Parker, 28 Wis. 21; McCabe v. Sumner, 40 Wis. 386. The judgments and executions having been set aside in these cases, there can be no defense to the parties plaintiff in them for the acts done under them. Simpson v. Hornbeck, 3 Lans. 53, 55; Williams v. Riel, 5 Duer, 601, 603; Holloway v. Turner, 6 Q. B. 928, 929.

The second point made, it seems to us, was, under the evidence, a mere question of fact for the jury; and the jury, under proper instructions from the court, have found against the claim of the defendants. This question, it appears, was submitted to the jury upon an instruction asked by the learned counsel for the defendants, and as the evidence upon the claim made by the defendants was not so clear as to justify the court in taking the question from the jury, the verdict must be taken as conclusive upon the parties.

The remaining question is whether a proper rule of damages was laid down by the learned circuit judge on the pial of this action. To determine that question it becomes |nec-.essaiy to understand just what the nature of the action is, as disclosed by the evidence on the trial. In the complaint there were allegations which, if established by the evidence on the trial, would probably have brought the case within the rule of damages established incases for malicious prosecution. After all the evidence was before the court, the learned circuit judge very properly held that there was no sufficient evidence of malice on the part of the defendants to justify the jury in giving damages on that ground. The learned judge on the trial, after the plaintiff had introduced all his evidence, and in reply to the counsel for the defendants, who stated that the plaintiff was claiming punijtory damages, made the following statement: “They have now rested their case, and I do not think there is a shadow of testimony that would warrant the recovery of punitory damages in this case; but I am inclined to think for the present that they may recover the -actual damages, if they sustained any, growing out of this levy, if it has not been settled.” In his instructions to the jury the learned judge said, speaking of the claim, for exemplary damages: “The plaintiff would have no right to recover, in any event, exemplary damages by way of punishment of the defendants, unless he established by the testimony substantially what is alleged in the complaint, that these judgments were entered and executions issued and levied maliciously, for the purpose of overreaching and oppressing the plaintiff and breaking up his business. I do not think there is any evidence tending to establish this claim. It is for the court to withdraw any claim from a jury when there is no evidence tending to prove it.”

The evidence in the case, as said by the learned circuit judge, excludes from it all considerations of malice or intent to overreach or oppress the plaintiff by the action of the defendants. The case must therefore be treated as an honest, but illegal, attempt on the part of the defendants to collect their claims of the plaintiff by due process of law. They must be treated as having acted in good faith, and under the advice of at least very reputable attorneys of this court.

In this view of the case, we are constrained to hold that a proper rule for assessing the damages of the plaintiff was not adopted on the trial. Under the instructions of the court the plaintiff was allowed to recover as damages (1) the attorney’s fees and commissions included in the judgments of confession, and paid by the plaintiff in order to get a return of the property levied upon; (2) the expenditures of the plaintiff for the service of his attorneys in the circuit and supreme courts, in getting the judgments and executions set aside; (3) the whole expenses of the assignee under the assignment, including a large sum claimed to have been paid by the assignee, in conducting and closing up the assignment, for attorney’s fees; (4) the probable profits the plaintiff would have made, from the time of the seizure of his stock of goods until the end of one year after the remnant of the goods were delivered to him by the as-signee; (5) for loss because the assignee was forced to sell the goods not in the usual course of trade. The court also submitted to the jury that they might in their discretion allowr damages for injury to the feelings of the plaintiff. The jury found a verdict for the plaintiff for the sum of $10,572.15. They stated that $3,000 of this vras for loss of profits during the time specified; $572.15 for the attorney’s and sheriff’s fees included in the judgments and on the executions. They did not find anything as compensation for the plaintiff’s injured feelings, so that the $7,000 must have been allowed for the expenses of the assignment, and for loss on the goods by forced sale by the assignee. The counsel for the defendants excepted on the trial to the evidence offered tending to prove loss of profits, also to the evidence of the expenses of the assignment, the evidence as to the loss by forced sale of the goods by the assignee, and his expenses for attorney’s fees in executing his duties as assignee, as well as to the instructions of the court to the jury upon these questions.

As was said by the learned circuit judge, the action was for the commission of a trespass by the defendants in seizing and holding the goods of the plaintiff under the irregular and void executions for the period of twenty-six days, and, substantially, that it was a trespass without malice or any illegal design on the part of the defendants. Under these circumstances, we are clearly of the opinion that the latitude allowed by the learned circuit judge for assessing damages was unwarranted, and worked great injury to the defendants. This case, as submitted to the jury upon the evidence, is substantially the same as to facts as the case of Beveridge v. Welch, 7 Wis. 465. The only difference between the case of Beveridge v. Welch and the case at bar is in the form of the action, and the fact that in the Beveridge Case the sheriff was made the defendant, instead of the plaintiffs in the execution. In Beveridge v. Welch the action was replevin for the goods, and to recover damages for their wrongful seizure and detention. The grounds of the action in that case were such that the execution in the hands of the sheriff furnished him no protection, and he was therefore liable to the same extent for any damages which his acts caused the plaintiff as the plaintiffs in the execution would have been had they directed the acts to be done by the sheriff. In that case the sheriff took the property of the plaintiff, not upon an execution against him, but upon an execution against a third person. There was enough evidence in that case to exonerate the sheriff from all malice or intentional wrong-doing in the case, but the jury found he had made a mistake in seizing the property of the plaintiff instead of the property of the defendant in the executions, and he was therefore held liable to respond in damages to the plaintiff; and the material question was as to the damages the plaintiff was entitled to recover. In that case the sheriff had seized goods of the plaintiff of the value of $6,000, and had detained them from the plaintiff sixteen days. The goods were a stock of goods kept by the plaintiff in a country store. The plaintiff recovered $500 damages for the taking and detention of the property by the defendants. The goods themselves were delivered to the plaintiff by virtue of the writ of replevin. In reversing that judgment this court said: “ The jury gave the respondent $500 damages for the wrongful taking and detention of the goods by the sheriff, who had them in his possession for the period of not exceeding sixteen days. The stock of merchandise taken was such as is usually kept in a country dry-goods store, and was valued by the jury at $6,000. The goods were not removed from the building, were carefully handled, and placed- in a pile in the store, where they remained until the respondent replevied them, or obtained possession of them by commencing this action. The respondent was deprived of the use and control of his goods for sixteen days, and, according to the most favorable rule, the measure of damages in this case would be the legal interest upon the value of the property while it was out of his possession, and compensation for any depreciation in the value of the goods replevied, and the necessary expense of placing the goods in their proper place; ” citing for authority for this rule, Graves v. Sittig, 5 Wis. 219; Morris v. Baker, 5 Wis. 389; and Gordon v. Jenney, 16 Mass. 465. The facts of the case are almost identical with the facts in the case at bar. In this case the defendants caused to be seized upon their executions, not the property of a stranger, but the property ofRhe defendant in the executions, a stock of goods worth $27,000. They did not remove them from the shelves in the store, but closed the store, and held them without injury for twenty-six days, and then delivered them to the assignee of the plaintiff, at the request and with the assent'of the plaintiff. In both cases the evidence disclosed that the defendants acted without malice or intent to oppress or injure the plaintiffs; in the former case under a mistake of fact, and in the present case under a mistake of law.

It is evident that, if the court laid down the proper rule for assessing the damages in the case of Beveridge v. Welch, then the rule laid down by the learned circuit judge in this case is radically wrong. It is urged, however, on the part of the learned counsel for the respondent, that the rule as stated in the Beveridge Case has been greatly modified, if not abolished, by this court in subsequent decisions, or, if not, that the facts in the case at bar are not similar to the facts in that case, and so the rule there laid down has no .application. ¥e think it will be found by an examination of the subsequent cases in this court, which are said to establish a different rule from that in the Beveridge Case, that they are all cases dependent upon an entirely different state of facts, and that in none of them has the soundness of the decision in the Beveridge Case been questioned, j The cases relied upon in this court as changing the rule i|n the Beveridge Case are Shepard v. Milwaukee G. L. Co. 15 Wis. 318; Jolly v. Single, 16 Wis. 280; Kinney v. Crocker, 18 Wis. 74; Gates v. N. P. R. Co. 64 Wis. 71; and Poposkey v. Munkwitz, 68 Wis. 322. That the cases of Shepard v. Milwaukee G. L. Co., Jolly v. Single, and Kinney v. Crocker were not supposed by this court to have changed the rule as laid down in the Beveridge Case upon a case presenting similar facts, is evident from the subsequent decision of this court in Bonesteel v. Orvis, 22 Wis. 523, 525, where that case is cited in the opinion ¿of this court as establishing the proper rule upon the facts stated. The subsequent cases of Gates v. N. P. R. Co. and Poposkey v. Munkwitz, supra, were cases dependent upon an entirely different state of facts.

¥e do not see that the facts in the case, so far as they relate to the acts of the defendants, differ from those in the Beveridge Case. There being no malice or wrongful intent to oppress the plaintiff, they proceeded to collect their debts, as they supposed, in a lawful way, under the advice of learned counsel, and ordered the goods of the plaintiff seized, upon what they were advised were valid judgments and executions. It turns out that, upon an examination of such judgments and executions by this court, it was adjudged that they were irregular and void. The justification for taking the goods fails, but in the absence of malice or bad motives they stand precisely in the same position that the sheriff did in the Beveridge Case, and it seems to us that because results to the plaintiff followed in this case which do not appear to have followed in the Beveridge Case, that does not change the rule. That the rule laid down by this court in the Beveridge Case is fully sustained by the great weight of authority, by the decisions of other courts, is clearly established by the numerous authorities cited by the learned counsel for the appellants in the very able brief presented by them on the hearing of this appeal, some of which are here cited: Bierbach v. Goodyear Rubber Co. 54 Wis. 208, 211; Blair v. M. & P. du C. R. Co. 20 Wis. 262; Masterton v. Mount Vernon, 58 N. Y. 391, 396; Higgins v. Mansfield, 62 Ala. 267; Holliday v. Cohen, 34 Ark. 707, 710, 711; Heath v. Lent, 1 Cal. 412; Tobin v. Post, 3 Cal. 373; Oviatt v. Pond, 29 Conn. 479; Water Lot Co. v. Leonard, 30 Ga. 560, 567, 577; Green v. Williams, 45 Ill. 206; Cilley v. Hawkins, 48 Ill. 308; Chicago City R. Co. v. Howison, 86 Ill. ; Glass v. Garber, 55 Ind. 336; Western G. R. Co. v. Cox, 39 Ind. 260; Campbell v. Chamberlain, 10 Iowa, 337; Lowenstein v. Monroe, 55 Iowa, 82; Washington Ice Co. v. Webster, 62 Me. 341, 362; Boyd v. Brown, 17 Pick. 453, 461; Brown v. Smith, 12 Cush. 366; Simmer v. St. Paul, 23 Minn. 408, 410; Cincinnati v. Evans, 5 Ohio St. 594, 605; Bates v. Clark, 95 U. S. 209; Smith v. Condry, 1 How. 28; Bazin v. Steam-Ship Co. 3 Wall. Jr. 229, 242; Wallace v. Finberg, 46 Tex. 36, 48; Miller v. Jannett, 63 Tex. 82; Weeks v. Prescott, 53 Vt. 73, 74; Dennis v. Stoughton, 55 Vt. 371, 377.

Many more oases might be cited, but it seems to us uhat those cited are quite sufficient to support the rule stated in Beveridge v. Welch and Bierbach v. Goodyear Rubber Co., supra, that in an' action to recover for an illegal seizure of goods of the plaintiff, when no malice is proved or any intent to oppress the party whose goods are seized, no damages can be assessed for supposed loss of profits from, the interruption of the business of the plaintiff. We think the-verdict of the jury in this case is very convincing proof that the rule of this and other courts in limiting the range of the jury in the assessment of damages in cases of this-kind to such as can be readily ascertained by certain proofs, and not permitting them to wander into matters which are purely speculative, and which may or may not have been occasioned by the acts of the defendants, is a most salutary rule. The plaintiff having, immediately after the seizure made by the defendants, of his own motion made a voluntary assignment, he cannot charge any losses which may have occurred to him thereby to these defendants. We think it is purely a conjecture, and not a fact proved by the evidence in this case, that such assignment was caused by the acts of the defendants, or that it was not, under all the-circumstances, the best tiling for the plaintiff that such assignment was made. If it was not the best thing to do,, the defendants are not responsible, as they did not do it or in any legal sense cause it to be done. If it was the best thing to do, then they ought not to be mulcted in damages because it was done. That the defendants cannot be charged with losses, if any, resulting from such assignment, seems clear to us. See Walker v. Fuller, 29 Ark. 448, 458, 459; Donnell v. Jones, 13 Ala. 490, 513.

If under any circumstances the jury might consider in assessing damages that the business and trade of the plaintiff had been injured and interrupted by the acts of the defendants, we cannot see upon what grounds they are to be chargeable with the supposed loss of profits the plaintiff would have made after the goods had been returned to him, or how, in estimating such loss of profits, they were authorized to estimate the losses occurring within about two years after the goods had been returned to the plaintiff or to his assignee. The learned circuit judge appreciated the difficulties attendant upon giving such latitude to the jury, and remarked on the trial, to the offers of evidence on the part of the plaintiff tending to show that his business had not been as successful after the return of the goods as before they were seized: “You cannot get any definite or strict rule to guide the jury, and it may be a question how far the party may suffer injury, and testimony must be taken on the question and submitted to the good sense of the jury.” Damages which are so uncertain and indefinite, and which depend mainly upon the acts of the plaintiff himself, after the defendants have ceased to have any control over his property or his acts, are of too vague and indefinite a character to be estimated by the jury.

We think in assessing the damages in this case the jury should be restricted to the following items. The goods seized having been delivered to the plaintiff long before this action ■was commenced, their value cuts no figure in the case except as they bear upon the other items of damages. First, the plaintiff should recover interest on the value of the goods seized, from the time of the seizure until the same were delivered to the plaintiff or to his assignee; or, at the option of the plaintiff, in lieu of such interest, lie may recover as damages the value of his business during said time; second, for any depreciation in the value of the goods during the same time; and, third, for any expenses the plaintiff was put to in obtaining a, return of the goods. This last item would include the sum of $572.15, which he was compelled to pay for the costs included in the illegal judgments, and the alleged sheriff’s fees charged for executing the illegal executions. It would also include any expenses to which the plaintiff had been put by way of rent or"use of store and clerk’s hire during the time the defendants had possession of the store. And under this item of expenses we are inclined to hold that the plaintiff may recover any money he may have necessarily expended for counsel and attorney’s fees in the proceedings to set aside the illiegal judgments and executions. The learned counsel for the appellants have cited several cases in England and in-the United States which hold that these expenses are not recoverable in an action of trespass for injury to the property of the plaintiff. These decisions go mainly upon the nature of the action, and rest upon the right to recover in the given form of action. In Holloway v. Turner, 6 Q. B. 929, 930, the court say that these expenses cannot be recovered in that action, but it is expressly stated that the plaintiff might recover such costs in a proper form of action. The American cases cited proceed upon the same ground. In this state] anp under the Code, there seems to be no good reason why they may not be recovered in the same action, when the facts are properly stated in the complaint. See subd. 1, sec. 2647, R. S.

No damages should be allowed for injury to the feelings of the plaintiff. Injury to the feelings is not a legitimate item of damages in any action for an injury to personal property, when such injury is not malicious and is not accompanied by insult. Donnell v. Jones, 13 Ala. 490. No damages should be assessed in consequence of the voluntary assignment, either for the expenses of the assignment or by supposed losses by forcing the goods upon the market, nor for loss of profits of business for any time after the goods were restored to the plaintiff or his assignee.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.