Pollock & Co. v. Gantt

STONE, J. The present is a suit by a merchant, and complains that Pollock & Oo. wrongfully and vexatiously sued out .an attachment against him, and procured it to be levied on his stock of merchandise. The suit is on the bond given to procure the attachment. The special ground of the attachment was, “ that the said M. A. Gantt has moneys, property or effects liable to satisfy his debts, which he fraudulently withholds.” Two other attachments had been previously, but on the same day, sued out against Gantt by other creditors, and had been levied on the same stock of merchandise. The ground on which those other attachments were issued, was the same as that on which the present one was sued out; and the [377] recoveries in those prior suits greatly exceeded the sum the merchandise yielded, after setting apart to the defendant one thousand dollars in value of the goods, claimed and allowed to him as exempt. The attachment in favor of Pollock & Co. was sued out by an agent, and the record is silent as to the authority under which the agent acted. The complaint sets forth a copy of the bond, avers that the alleged ground on which the attachment was issued is untrue, and avers separately, first, that it was wrongfully sued out, and, second, that it was wrongfully and vexatiously sued out. It contains also an averment of special damage, “ that at the time of suing out and levy of said attachment • on the goods, wares, chattels and merchandise of the plaintiff, by the defendants, J. Pollock & Oo., he, the plaintiff, was engaged in the mercantile business, and had a good reputation, credit, business and good customers; and that by, and in consequence of the levy of said attachment on his property and effects, his business, reputation and credit have been destroyed and lost, and his customers have withdrawn — to the loss and special damage of the plaintiff,” etc. It will be observed that the special damage herein averred, relates to his reputation and credit as a merchant, and the value and profitableness of his business as a merchant. Among the general rules for the recovery of damages, are the following: that they must be the natural and proximate consequence of the wrong done; not the remote, or accidental result. And special damages can be recovered only when they are not too remote, and are specially counted on and claimed in the complaint. What are termed speculative damages — that is, possible or even probable profits that, it is claimed, could have been realized but for the tortious act or breach of contract charged against defendant — are too remote and can not be. recovered. — Culver v. Hill, 68 Ala. 66; Donnell v. Jones, 13 Ala. 490; O’Grady v. Julian, 34 Ala. 88; Bolling v. Tate, 65 Ala. 417; Sims v. Glazener, 14 Ala. 695; Burton v. Holley, 29 Ala. 318; Higgins v. Mansfield, 62 Ala. 267. The ground on which special damages are claimed in this case, may be summarized as follows: That plaintiff was a merchant of good reputation and credit, had good customers and was doing a good business, and that by the issue and levy of the attachment, his credit was destroyed, and his business broken up. The issue formed on these averments opened the door for proof and disproof of every material fact embraced within the issue thus formed. It opened the door no wider. It did not let in evidence of any special damage, of which the averments in the complaint give no notice. This, for the obvious reason, that any other rule would operaté a surprise and injustice to the defendants. .Hence the rule requiring special averments, to [378] authorize a recovery of special damages. And if the damages-claimed be of the class called speculative, or otherwise too remote, even special averments will not authorize their recovery. The general rule is that only facts can be given in evidence. Facts are sometimes simple, sometimes collective. Still, the witnesses speak only of facts. It is for the jury to draw inferences and conclusions. There are exceptions to this rule. Experts can testify to opinions; and there are many questions-upon which a non-expert witness may express his judgment or opinion. Yalue, length of time, distance, and many others, fall under this class. So, good or bad character, good or bad credit, is a conclusion of fact, partly based on opinion and judgment, founded more or less on reputation; and, the proper ¡medicate being laid, any one may testify to it as a fact; a collective fact, made up of many known ingredients. The proper predicate to be laid is, that the witness has sufficient knowledge of the subject — character' or credit — about which he proposes to testify. So, if a witness has sufficient knowledge, he can speak of credit as a fact, and the extent of it. He can not speak of its value in dollars and cents. That is a question of inference for the jury to draw. And a witness may testify to the extent of a merchant’s business, and the rate, or average of profits he may realize on sales, above expenses, if these are matters within his knowledge; but he can not give his judgment or opinion as to the extent of loss a merchant will suffer' by the breakingup of his business. Such question is dependent on so many elements of fact and circumstance, that any estimate -that might be attempted, would necessarily -be opinion, or conclusion. This is a question for the jury, not for direct testimony. Proof was offered by plaintiff, and received by the court against the objection of defendants., that plaintiff was making advances to timbermen and others, and that thereby he had become interested in the handling of timber and crops; and his mercantile business being stopped, he lost these advantages, lost his advances, and lost the shipment of his timber. These matters of proof, each and all, were inadmissible. There was no averment in the complaint to authorize them, and if there had been, the damages claimed on those accounts are speculative and too remote. In this case the attachment was sued out by an agent, and there is no proof that the agent was authorized or instructed to sue out the process. Neither is there proof that the principal ever repudiated the suit. It was prosecuted to judgment. This subjected the principal to actual damages, if no cause existed for suing it out. lie would not be responsible for the malice, vexatious conduct, or wantonness of the agent, unless [379] he caused, or participated in such evil motive. Malice or vexatiousness in the agent, and only in him, does not expose the principal to vindictive damages. — Kirksey v. Jones, 7 Ala. 622 McCullough v. Walton, 11 Ala. 492. The defendants ought to have been permitted to prove, that previous to the suing out of their attachment, the agent by whom it was done, was notified that other creditors of the plaintiff had on that day sued out attachments against him, on the same alleged ground as that set forth in defendant’s attachment. This testimony was admissible on the question of exemplary or vindictive damages. It does not bear on the question of actual damages. No matter how well founded the belief of the attaching creditor, that, a statutory ground exists for suing out the attachment, if he mistake, or be misinformed, and there be in fact no ground for this extraordinary process, then the attachment is wrongful,, and there may be a recovery of the actual damage done. This is measured .by the actual injury which the issue and levy of the particular attachment occasioned. It extends no farther. Several of the rulings of the Circuit Court are not reconcilable with the views expressed above. Reversed and remanded.