BROWN, J., dissenting.
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Walker.
Plaintiffs brought this action to recover damages for unlawfully and maliciously suing out process and levying upon plaintiff's property, thereby breaking up and destroying their business. (107) Defendant had previously sued the plaintiffs for the recovery had seized the same. That suit was decided in favor of the defendants, for the reason hereinafter stated. The defendant held a note, and a mortgage on the property to secure the same, which was executed by one Thomas to Penny. The property was afterwards sold by Thomas to the plaintiffs, Ludwick and Bame, who undertook to pay the note secured by the mortgage. They alleged that, by an agreement between all interested parties and the payment of $1,500, the debt and mortgage had been satisfied when Penny brought his suit against them. The jury so found in that action, and further found, in answer to issues submitted to them, that the value of the property, sold and unsold by Penny, was $2,500. The court thereupon adjudged that the defendants in that suit, Ludwick and Bame, recover of the plaintiff, George T. Penny, the sum of $750, the value of the property which had been sold, and the costs of the action, and also the sum of $1,800, the value of the unsold property, as found by the jury; but as to the latter sum ($1,800) a stay bond of execution was ordered, so that the plaintiff, Penny, might
have the opportunity to redeliver the unsold property. The defendants in that action, Ludwick and Bame, set up a counterclaim for the unlawful and wrongful conversion of their property by Penny, and for nothing more.
The defendant in this action, George T. Penny, pleads that the plaintiffs are estopped by the judgment in the action of Penny v. Ludwick and Bame to claim any damages for "breaking up and destroying their business by unlawfully and maliciously suing out process of claim and delivery and seizing their property, as that question was directly involved in the former suit." We do not adopt this view of the matter. The jury found, in this case, that "the defendant, George T. Penny, had unlawfully, willfully, wrongfully, wantonly, recklessly, and maliciously sued out the process of the court in the case of Penny v. Ludwick and Bame, as alleged in the complaint," which was equivalent to saying that Penny, knowing that he had no cause of action against the defendants in that suit, Ludwick and Bame, had wrongfully, maliciously, and wantonly brought the suit and levied upon their property which was used in their business, which, it is alleged, subsequently (108) detroyed it. This matter was not involved in the former suit.
The Revisal, sec. 570, provides that in an action to recover the possession of personal property, if the property has been delivered to the plaintiff, and the defendant claims a return thereof, and becomes entitled to it by succeeding in the action, judgment for him shall be for a return of the property, or for the value thereof, in case a return cannot be had, and damages for taking and withholding the same. It is true, the defendants in that case set up a counterclaim, but they did not allege any facts which would entitle them to any greater relief than is given to them by Revisal, sec. 570, and the counterclaim was superfluous pleading.
The cause of action alleged in this case was not, therefore, involved in that suit, nor was it at all considered, nor did the defendants therein recover any damages on that account. One valid reason for not estopping the plaintiffs in this action by the judgment in the former suit is that the statute we have cited limits the recovery in the latter to the property or the value thereof, unless, perhaps, the defendants in that suit had set up a counterclaim for more, that is not only for such damages, but for maliciously breaking up and destroying their business.
The defendant Penny relies upon the following principles, which he says are established by Porter v. Mack, 50 Wa. Va., 581, 592, and numerous other authorities cited in the brief of his counsel: "When a person has a cause of action which he may assert by an action ex contractu for the direct damages, or ex delicto for both the direct and indirect
damages, if he selects the former he waives the latter, including all claim for indirect damages. Both actions are regarded as for the same wrong, of which he can have but a single satisfaction, though it in no wise compensates him for the damages sustained." 21 A. E. Enc., 237, note 1, Webb's Pollock on Torts, 658; Kendall v. Stokes, 3 How., 87; Norton v.Dougherty, 3 Gray, 372; Ware v. Percival, 61 Me. 391; Newby v.Caldwell, 54 Iowa 102; Wagner v. Wagner, 36 Minn. 239; Thompson v. Myrick, 24 Minn. 12; Whitney v. Clarendon, 18 Vt. 258; (109) Smith v. Way, 9 Allen, 473. And again: "In all cases where the plaintiff has his option in the outset to bring tort or contract to recover damages for one and the same injury upon a state of facts which will support either, an adjudication in one, whichever he may elect, is, upon principle, a bar to the other." And further it is urged by him that "a cause of action and the damages recoverable therefor are an entirety. The party injured must be plaintiff, and must demand all the damages he has suffered or which he will suffer from the injury, grievance, or cause of action of which he complains. He cannot split a cause of action and bring successive suits for parts, because he may not at first be able to prove all the items of the demand, or because all the damages have not been suffered. If he attempts to do so, a recovery in the first suit, though for less than his whole demand, will be a bar to a second action."
The principle here asserted in defendant's behalf, as defeating the plaintiffs' right of recovery in this action, finds support in the decisions of this Court. Eller v. R. R., 140 N.C. 140; Mast v. Sapp,140 N.C. 538.
The defendant also contends that the Court has adopted in such cases as this the following rule: "Where two or more successive actions are identical as to the parties, the alleged cause of action, the defenses relied upon, and the relief demanded, a judgment upon the merits in the first action will estop any and all parties from maintaining the subsequent ones. Except in special cases, the plea of res judicata applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of the issue, and which the parties, exercising reasonable diligence, might have brought forward. Under our present system of pleading and practice a party is conclusively presumed, when sued in a second action on matters before litigated, to have set up in the former action all the equitable defenses of which he might have availed himself to defeat the legal title." Tuttlev. Harrill, 85 N.C. 456; Anderson v. Rainey, 100 N.C. 321; Buchanan v.Harrington, 152 N.C. 335; Harper v. Lenoir, 152 N.C. 723; Wagon Co. v.Byrd, 119 N.C. 460.
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BROWN, J., dissenting.
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Walker.
Plaintiffs brought this action to recover damages for unlawfully and maliciously suing out process and levying upon plaintiff's property, thereby breaking up and destroying their business. (107) Defendant had previously sued the plaintiffs for the recovery had seized the same. That suit was decided in favor of the defendants, for the reason hereinafter stated. The defendant held a note, and a mortgage on the property to secure the same, which was executed by one Thomas to Penny. The property was afterwards sold by Thomas to the plaintiffs, Ludwick and Bame, who undertook to pay the note secured by the mortgage. They alleged that, by an agreement between all interested parties and the payment of $1,500, the debt and mortgage had been satisfied when Penny brought his suit against them. The jury so found in that action, and further found, in answer to issues submitted to them, that the value of the property, sold and unsold by Penny, was $2,500. The court thereupon adjudged that the defendants in that suit, Ludwick and Bame, recover of the plaintiff, George T. Penny, the sum of $750, the value of the property which had been sold, and the costs of the action, and also the sum of $1,800, the value of the unsold property, as found by the jury; but as to the latter sum ($1,800) a stay bond of execution was ordered, so that the plaintiff, Penny, might
have the opportunity to redeliver the unsold property. The defendants in that action, Ludwick and Bame, set up a counterclaim for the unlawful and wrongful conversion of their property by Penny, and for nothing more.
The defendant in this action, George T. Penny, pleads that the plaintiffs are estopped by the judgment in the action of Penny v. Ludwick and Bame to claim any damages for "breaking up and destroying their business by unlawfully and maliciously suing out process of claim and delivery and seizing their property, as that question was directly involved in the former suit." We do not adopt this view of the matter. The jury found, in this case, that "the defendant, George T. Penny, had unlawfully, willfully, wrongfully, wantonly, recklessly, and maliciously sued out the process of the court in the case of Penny v. Ludwick and Bame, as alleged in the complaint," which was equivalent to saying that Penny, knowing that he had no cause of action against the defendants in that suit, Ludwick and Bame, had wrongfully, maliciously, and wantonly brought the suit and levied upon their property which was used in their business, which, it is alleged, subsequently (108) detroyed it. This matter was not involved in the former suit.
The Revisal, sec. 570, provides that in an action to recover the possession of personal property, if the property has been delivered to the plaintiff, and the defendant claims a return thereof, and becomes entitled to it by succeeding in the action, judgment for him shall be for a return of the property, or for the value thereof, in case a return cannot be had, and damages for taking and withholding the same. It is true, the defendants in that case set up a counterclaim, but they did not allege any facts which would entitle them to any greater relief than is given to them by Revisal, sec. 570, and the counterclaim was superfluous pleading.
The cause of action alleged in this case was not, therefore, involved in that suit, nor was it at all considered, nor did the defendants therein recover any damages on that account. One valid reason for not estopping the plaintiffs in this action by the judgment in the former suit is that the statute we have cited limits the recovery in the latter to the property or the value thereof, unless, perhaps, the defendants in that suit had set up a counterclaim for more, that is not only for such damages, but for maliciously breaking up and destroying their business.
The defendant Penny relies upon the following principles, which he says are established by Porter v. Mack, 50 Wa. Va., 581, 592, and numerous other authorities cited in the brief of his counsel: "When a person has a cause of action which he may assert by an action ex contractu for the direct damages, or ex delicto for both the direct and indirect
damages, if he selects the former he waives the latter, including all claim for indirect damages. Both actions are regarded as for the same wrong, of which he can have but a single satisfaction, though it in no wise compensates him for the damages sustained." 21 A. E. Enc., 237, note 1, Webb's Pollock on Torts, 658; Kendall v. Stokes, 3 How., 87; Norton v.Dougherty, 3 Gray, 372; Ware v. Percival, 61 Me. 391; Newby v.Caldwell, 54 Iowa 102; Wagner v. Wagner, 36 Minn. 239; Thompson v. Myrick, 24 Minn. 12; Whitney v. Clarendon, 18 Vt. 258; (109) Smith v. Way, 9 Allen, 473. And again: "In all cases where the plaintiff has his option in the outset to bring tort or contract to recover damages for one and the same injury upon a state of facts which will support either, an adjudication in one, whichever he may elect, is, upon principle, a bar to the other." And further it is urged by him that "a cause of action and the damages recoverable therefor are an entirety. The party injured must be plaintiff, and must demand all the damages he has suffered or which he will suffer from the injury, grievance, or cause of action of which he complains. He cannot split a cause of action and bring successive suits for parts, because he may not at first be able to prove all the items of the demand, or because all the damages have not been suffered. If he attempts to do so, a recovery in the first suit, though for less than his whole demand, will be a bar to a second action."
The principle here asserted in defendant's behalf, as defeating the plaintiffs' right of recovery in this action, finds support in the decisions of this Court. Eller v. R. R., 140 N.C. 140; Mast v. Sapp,140 N.C. 538.
The defendant also contends that the Court has adopted in such cases as this the following rule: "Where two or more successive actions are identical as to the parties, the alleged cause of action, the defenses relied upon, and the relief demanded, a judgment upon the merits in the first action will estop any and all parties from maintaining the subsequent ones. Except in special cases, the plea of res judicata applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of the issue, and which the parties, exercising reasonable diligence, might have brought forward. Under our present system of pleading and practice a party is conclusively presumed, when sued in a second action on matters before litigated, to have set up in the former action all the equitable defenses of which he might have availed himself to defeat the legal title." Tuttlev. Harrill, 85 N.C. 456; Anderson v. Rainey, 100 N.C. 321; Buchanan v.Harrington, 152 N.C. 335; Harper v. Lenoir, 152 N.C. 723; Wagon Co. v.Byrd, 119 N.C. 460.
We have no desire to contravene what is thus stated by the authorities, for we believe that when they are properly considered and understood, it will be found that the principle is correctly formulated (110) by them and is in itself just and right. There should be an end of litigation, and this is the fundamental idea upon which the rule ofres judicata is founded, and to this may be added, as another reason for the rule, the maxim of the law that no one should be twice vexed for the same cause. But does this well-settled rule apply to this case? We think not, and the case of Tyler v. Capehart, 125 N.C. 64, which explains and defines the doctrine on this question, is decisively against the defendant's contention. It is said in that case that "A judgment is decisive of the points raised by the pleadings, or which might be properly predicated upon them, but does not embrace any matters which might have been brought into the litigation, or causes of action which the plaintiff might have joined, but which in fact are neither joined nor embraced by the pleadings. Although the present cause of action might have been set up as a second cause of action in the former suit, as it was not, and was not actually litigated, and was not `such matter as was necessarily involved therein,' the plea of res judicata will not avail."
We have seen that our statute confines the recovery in an action for personal property with the ancillary remedy of claim and delivery to the property itself or the value thereof, which, of course, excludes the recovery of any damages for maliciously suing out process and destroying the plaintiff's business, which is a distinct cause of action with a different rule as to the measure of damages. Cooley on Torts (3 Ed.), 348, Judge Cooley tells us when an action will lie for the malicious prosecution of a civil suit, and in that connection he says: "So a suit for malicious prosecution will lie where the plaintiff's property or business has been interfered with by the appointment of a receiver, the granting of an injunction, or by writ of replevin." Brownstein v.Sahlein, 65 Hun., 365; McPherson v. Runyon, 41 Minn. 524. He also says that the same rules apply to actions for malicious civil suits as for criminal prosecutions, and thus states this branch of the rule: "It is laid down or assumed in all the cases that an action for the malicious prosecution of a civil suit is governed by the same (111) principles as one for the malicious prosecution of a criminal action. There must be malice and the want of probable cause, and the same rules apply in the proof or disproof of these elements. So the advice of counsel will have the same effect as in case of criminal prosecution, under the same conditions. And the malicious suit must be terminated in favor of the plaintiff in that action." Ibid., 352.
Speaking of the malicious abuse of process, he distinguishes it from a
malicious civil suit, where there is an interference with property or business, as follows: "If process, either civil or criminal, is willfully made use of for a purpose not justified by the law, this is abuse for which an action will lie. The following are illustrations: Entering a judgment and suing out an attachment for an amount greatly in excess of the debt; causing an arrest for more than is due; levying an execution for an excessive amount; causing an arrest when the party cannot procure bail and keeping him imprisoned until, by stress thereof, he is compelled to surrender property to which the other is not entitled. In these cases, proof of actual malice is not important, except as it may tend to aggravate damages; it is enough that the process was willfully abused to accomplish some unlawful purpose. `Two elements are necessary to an action for the malicious abuse of legal process: First, the existence of an ulterior purpose; and, second, an act in the use of the process not proper in the regular prosecution of the proceeding. Regular and legitimate use of process, though with a bad intention, is not a malicious abuse of process.' In a suit for malicious abuse of process it is not necessary that there should have been a termination of the suit in which the process was issued, nor a want of probable cause for the suit." Ibid., 354 et seq. The distinction is clear: one consists in commencing and prosecuting a suit maliciously and interfering with property or business, and the other consists in the willful, unlawful, and wrongful use of the process itself. As the suit must have been terminated before an action will lie for prosecuting it maliciously, this cause could not be set up in the action itself as a counterclaim or otherwise. Fulton Grocery Co. v. Maddox, 111 Ga. 260; Bonney v. King, 103 Ill. (112) App., 601; Luby v. Bennett, 111 Wis. 613.
But the conclusive answer to the contention that the former judgment is res judicata is that the defendant asked for no more than the statute allowed him to recover in that action, that is, the damages for the conversion only, and nothing more. This being the measure of his recovery, as fixed by the statute, he was not at liberty to ask for more damages than those authorized by the positive law in such cases, and therefore, having no opportunity to recover them in that action, he is not estopped to ask for them in this one.
The very question involved in this case is decided against the defendant's contention in McPherson v. Runyon, 41 Minn. 524; 16 Am. St., 727. It is suggested that the complaint shows that the plaintiffs are suing for a malicious abuse of process only, but a cursory reading of the complaint will make it appear, we think, that the action is really one for the malicious prosecution of a civil action and an interference with their property by claim and delivery proceedings. It is true, plaintiffs
allege that there was a malicious abuse of the process issued by the court, but they base this allegation solely upon the fact that they were unable to replevy the property by giving bond, which is manifestly insufficient to sustain such an action. They do allege, though, in substance, facts which are sufficient to constitute a good cause for malicious prosecution, for they say that defendant, knowing the plaintiffs were not indebted to him, at all, upon the debt and mortgage, unlawfully, wrongfully, willfully, wantonly, and recklessly commenced said action and prosecuted the same to their damage. They do not use the words "without probable cause," but no set form of words is required, if those of equivalent import are used, and the language of this complaint, in that respect, is much stronger than if the plaintiffs had employed the words "and without probable cause," If what the plaintiff alleges is true, there was no probable cause, but the action was wantonly instituted, and with reckless indifference to plaintiffs' rights of property. Pleadings are now construed liberally, and plaintiff recovers according to his allegations.Cheese Co. v. Pipkin, 155 N.C. 394; Vorhees v. Porter,134 N.C. 591; Blackmore v. Winders, 144 N.C. 212. But after (113) all is said, the fact remains that the defendant in the former action alleged no more than would enable him to recover what the statute allowed him to recover as damages, and that corresponded exactly with the allegation. The case is governed by Bowen v. King,146 N.C. 385, where it is said: "While the allegation of the complaint may be broad enough to constitute a demand for the possession, it is evident, from a perusal of the entire pleadings, that the demand was not intended to be for the possession, which the plaintiff undoubtedly had when the action was commenced, but was to recover damages caused by reason of the wrongful seizure and detention of the property. As heretofore stated, it does not definitely appear how plaintiff reacquired possession of the property, but assuming — and there are statements from some of the witnesses tending to show this — that the possession was restored by means of a former action of claim and delivery, while plaintiff could have had his damages assessed in the former action (Revisal, sec. 570), the authorities seem to be to the effect that he was not required to take this course, but, after obtaining possession, could, in another action, recover damages for the injury done by the wrongful seizure and detention of his property. Woody v. Jordan, 69 N.C. 189;Asher v. Reizenstein, 105 N.C. 213."
Our conclusion is that the plaintiffs are not estopped by the former judgment.
The testimony of the plaintiff, O. J. Ludwick, was objected to upon the ground that the former judgment was res judicata, and the
assignment of error based upon this exception cannot be broader than the exception itself. Where a party states the ground of his objection to evidence below, he cannot rely upon a different ground in this Court. This is well settled. Kidder v. McIlhenny, 81 N.C. 123; Jones v. Call,93 N.C. 179.
We do not mean to imply that there was any error in the court's ruling upon the evidence, or in its charge to the jury upon the damages. Those questions are not presented to us by the exceptions and assignments of error.
The court properly refused to sign the judgment tendered by (114) the defendant, upon a verdict in favor of the plaintiff.
No error.