Walker v. Lovell

28 N.H. 138

• Court: Superior Court of New Hampshire
• Decided: July 15, 1854
• Status: Published

Opinion

Woods, J.

Were the instructions that were requested to be given to the jury improperly withheld, and were the instructions that were given legal and proper, or otherwise ? The whole question necessary to be decided arises upon the instructions given to the jury, and the exception stated in the case is to those instructions alone. And well enough it may extend thus far only ; for a proper decision of the questions arising thereon, will also form a proper decision of the question arising upon the refusal of the instructions asked for and withheld. Upon the instructions given, and the finding of the jury thereon, it appears that the liquors and other goods, sold by Hall & Co. to Calvin W. Walker, were sold at one and the same time, but were not sold for one gross sum or price. The liquors and the other goods were, in fact, separately valued, and the price of the liquors was not a just and legal debt, for which a recovery could be had. Upon that state of facts, the question is, were Hall & Co. creditors of Calvin W. Walker or not? That Hall & Co. were entitled to recover the price of the goods sold, other than the liquors, under the circumstances, we entertain no doubt. That precise question, as we understand it, came before this court in the case of Carlton v. Woods, in the county of Hillsborough, (post.) That action contained a count for goods sold and delivered. It appeared that, in 1850, the plaintiff agreed to sell the defendant his stock of goods and groceries. The price to be paid was,the cost and freight of the articles. In order to ascertain the cost, a schedule of the articles was made, and the cost of each article was separately carried out. The defendant contended that the contract was an entire one ; that a part of the consideration was illegal, and the plaintiff could not recover any part of the price of the article. The plaintiff contended that the price of the spirituous liquors was distinct and independent of the price of the other articles, and would be readily ascertained, and that the consideration was divisible, and that he was entitled to recover the sum due for the articles, excepting the price of the spirituous liquors. The court held that the contract was not to be regarded as one entire and indivisible contract, but as divisible, and the consideration divisible, and that the sale and delivery of each article formed the consideration for the promise to pay the agreed price of it. It was said that the case did not differ from that of a sale of various articles, sold by a merchant, at one and the same time, to his customer, for separate values agreed upon for each article, and charged to the customer in account, and the plaintiff had judgment for the price of the articles other than the liquors. And we discover no reason to doubt the correctness of that decision. And, accordingly, we are of the opinion that Hall & Co. were entitled to have judgment, in their action against said Calvin, for at least the price stipulated for the articles sold him, other than the liquors, and had a just and valid claim to that extent. The mere fact that the liquors were sold at the same time, they being sold for an agreed separate value, would not defeat the recovery of the price of the other goods, although the sale of the liquors was an act prohibited and forbidden by the statues of Massachusetts when the sale was made, which would render the sale of the liquors wholly illegal and void. The illegality of the sale of the liquors could have no effect upon the sale of other articles, made at the same time for a separate, agreed and ascertainable price, and wholly distinct from the price of the prohibited articles. And we are further of opinion th.at, this point being decided, it distinctly appears that Hall & Co. are shown to have been creditors at the time of the attachment, and that, so far as that fact was necessary to be made to appear by the defendant, the officer who made the attachment, it is well made out. Although it is incumbent upon an officer who has made an attachment of property, in a case like the present, in justification of the act, and to enable him to interpose, in his defence, evidence of the fact that the claimant has acquired the title, in virtue of which he claims of the debtor in fraud of his creditors, or to delay and defeat their just efforts to collect their dues; yet it has never been holden, that we are aware of, that the entire debt claimed in the action should be made to appear to be due, and a recovery be had for that sum, or that the defence must fail. On the other hand, if the officer shows a debt due and recoverable in the action, and a judgment therefor actually recovered, it is a sufficient justification for taking and holding possession of the goods for the satisfaction of the proper debt due to the creditor. In Damon v. Bryant, 2 Pick. 411, Parker, C. J. says : “ The distinction which seems not to have occurred to the judge at the trial is, that where the execution, or writ, upon which goods are taken, is against the plaintiff himself, the officer is justified by the precept itself, for that commands him to take the goods of the plaintiff, and is a sufficient authority. But where the goods taken are claimed by a person who was not a party to the suit, and he brings trespass, and his title is contested on the ground of fraud, under the statute of 13 Eliz. ch. 5, a judgment must be shown, if the officer justifies under an execution, or a debt, if under a writ of attachment, because it is only by showing that he acted for a creditor that he can question the title of the vendee.” The officer must show, then, that he acted for a creditor only, and it matters not whether he be a creditor for a small or a large amount, and the authorities to this point are numerous, and, we believe, are entirely agreed. Lake v. Billers, 1 Ld. Raym. 733 ; Bac. Abr. Tres. G. 1; Savage v. Smith, 2 Wm. Black. 1104; High v. Wilson, 2 Johns. 9; Jemra v. Jollippe, 6 Johns. 9; Parker v. Miller, 6 Johns. 195; Blackley v. Sheldon, 7 Johns. 32; Holmes v. Nuncaster, 12 Johns. 395 ; Doe v. Smith, 2 Stark. Rep. 199.

But, it is contended on the part of the plaintiff, that inasmuch as it appears that the avails of the goods attached and sold upon the writ amounted to a greater sum than the amount of the debt, justly and legally due to Hall & Co., and the legal costs, and that the defendant applied the entire sum of the avails realized from the sale upon the execution issued upon their judgment against said Calvin, the defendant thereby became a trespasser db initio, and was answerable for the entire property originally attached.

But, we are of opinion that the present case does not fall within the principles governing the decisions of courts rendering the party liable as a trespasser db initio. Here has been no such wanton abuse of legal process as will make the party liable in that way. Here has been no forcible injury to the property attached, and no such wanton misconduct in reference to it as will deprive the party of the protection of the process under which the attachment was made. Herrin v. Simonds, 11 N. H. Rep. 363 ; Barrett v. White, 3 N. H. Rep. 210. The ground of the complaint is, in fact, a mere nonfeasance. After the attachment of the property, by virtue of the writ of attachment, the same was sold, according to the provisions of the statute, and the amount realized upon such sale was kept by the defendant untibjudgment was rendered in the action against said Calvin, and execution issued thereon and delivered to the defendant, when he applied thereon, in part discharge of it and of the costs thereof, the entire sum realized as the avails of it upon the sale. The only ground of complaint suggested is, that the sum thus appropriated was greater than the amount embraced in the judgment and execution for the price of the goods sued for, other than the liquors and the costs of the suit. Admitting that the fact is so, and that the excess applied beyond the amount of what was legally due and the costs of the action, was not properly and legally applied upon the execution against said Calvin, and that the plaintiff is entitled to receive that excess, still we are of opinion that it cannot be recovered in this form of action. The officer was undoubtedly obliged to apply the money to the extent of the sum justly due and the cost of the action. But if this form of action can be sustained upon the ground that the defendant is a trespasser ab initio, then the plaintiff would be entitled to recover the full value of all the goods attached, irrespective of the sum applied in discharge of the just debt of Hall & Co. against said Calvin. If the defendant is a trespasser ab initio, he is answerable as for a wrong in attaching the property originally, and for every other act touching it that was injurious to the plaintiff. But we are of opinion that the defendant is under no such liability as a trespasser. If he is liable to the plaintiff at all, the liability resting upon him Is only that of an officer, who, having sold the property of a judgment debtor, from which a larger amount has been realized than is required to answer the just and proper purposes of the sale, is responsible for the excess to the debtor.

This view, we think, is distinctly countenanced by the decision of the supreme court of Massachusetts, in the case of Gates v. Gates, 15 Mass. Rep. 310. A case more directly In point is that of Abbott v. Kimball, 19 Vt. Rep. 551. The action was originally trover, for sundry horses and harnesses, and was afterwards amended by the addition of several counts. The marginal note of the case is thus: « When property, attached upon mesne process, is sold by the attaching officer, a deputy sheriff, upon the writ, in pursuance of the Revised Statutes, ch. 28, §§ 48-52, and judgment is finally rendered in favor of the defendant, in the action in which the attachment was made, a refusal, on the part of the officer to pay to the defendant the amount for which the property was sold, will not make him a trespasser ab initio, so as to render him liable in trover for the property. The only proper action against the deputy, in such case, is for money.”

Redfield, J.,

in delivering the judgment of the court, remarked thus: “ The court charges the jury, that although the defendants made out all the facts alleged in their plea in bar, still the plaintiffs were entitled, in this form of action, to recover the amount of money for which the horses were sold, and interest from the time of the demand. No doubt, if the officer had no right to deduct the expenses of keeping and sale, of which we say nothing, (not being agreed fully,) the officer might be liable, in some form of action, for that amount. But, it seems to us, that in that case the officer is not liable in trover. A refusal to pay over the money, or claiming to retain part of it, upon grounds which are not well founded in law, will not make him a trespasser ab initio. And unless that is the case, trover will not lie even against the officer. It is like any other refusal to pay over money in his hands,” and “ the only proper action, in this view of the case, against the deputy, is for money.”

So in the present case, we think, if the plaintiff can recover at all against the defendant, for the money alleged to be misapplied by him, beyond the just debt and interest due to Hall & Co., and the costs of the suit and officer’s fees, we are of the opinion that there is no ground for maintaining the present form of action. The application of the money upon the execution was, at most, a mere exercise of an erroneous judgment of the officer, in reference to his duty and rights, and was wholly unattended with any thing like a wrong with force. It was no more than a mere nonfeasance as to this plaintiff. It was not more than the omission to pay over to the plaintiff' the surplus money remaining in his hands, after discharging that portion of the execution which was justly and legally due. There was no destruction or waste of the property or the money, by this act of the defendant. Notwithstanding the application of the money, by way of indorsement on the execution, in point of law, it is still in the hands of the defendant, for the plaintiff’s use. The mere application, in writing, upon the execution, can make no difference as to the rights of the plaintiff, and cannot be regarded as being injurious thereto. There must, therefore, be

Judgment on the verdict.