Griel Bros. v. Pollak

HARALSON, J. 1. In the transcript presented, there is but one count in the complaint, and that a special one. The judgment entry recites, that the complaint was amended by adding the common counts, and counsel on both sides in their briefs, treat the complaint as containing a count for money had and received, and so, therefore, will we. There was no error in overruling the defendant’s demurrer to the special count. The facts averred constitute an action in assumpsit.—Whilden v. M. & P. N. Bank, 64 Ala. 1; Mobile Life Ins. Co. v. Randall, 74 Ala. [254] 170; Sharpe v. N. Bank of Birmingham, 87 Ala. 648. 2. Bigelow very properly formulates an estoppel by conduct as follows; “1. There must have been a false representation or concealment of material facts. 2. The representation must have been made with knowledge, actual or virtual, of the facts. 3. The party to whom it was made must have been ignorant, actually and permissibly, of the truth of the matter. 4. It must have been made with the intention, actual or virtual, that the other party should act upon it. The other party must have been induced to act upon it.” Tested by these rules, the facts relied on by the defendant do not estop the plaintiff to institute and prosecute this action. There was no error, therefore, in sustaining the demurrer to defendants ’ pleas of the statute of limitations of one year — not pleadable to an .action of assumpsit — and of estoppel, on the plaintiff to prosecute this suit on the facts averred in the special count. Issue was joined, and the cause was tried on the plea of the general issue. The real contention between the parties — the plaintiff affirming and the defendant denying — arises on the proposition, that by the payment of John Harmon’s judgment recovered against the plaintiff in trespass for the wrongful levy of his attachment upon John Harmon’s goods, for the goods of the defendants in attachment— Harmon Bros. — he became invested with the title to the goods levied on and sold, or with the right to the money arising therefrom, by relation, as of the time of the trespass, and that the defendants having afterwards received money arising from a tortious sale of the goods, paid to them by the sheriff on their judgment against the said defendants in attachment, are liable to plaintiff for money had and received — the goods having been levied on under defendants’ attachment as well as under plaintiff’s and others’, and sold under each and all of them. This question as might be supposed, after so great a time, has not been left undecided. The better opinion, sustained by our own rulings, seems to be in favor of the proposition as asserted by the plaintiff. There are many authorities which hold that a judgment in trover or trespass for the value of the property for its wrongful conversion or seizure, amounts to an investiture of title in the defendant, while there are [255] many more that hold, that there must be a satisfaction of the judgment in order to vest the title to the chattle in defendants, whereas, it seems tobe generally agreed, that where the judgment has been satisfied by the defendant, the title is vested in him. See Spivey v. Morris, 18 Ala. 255, where the authorities are collated. In Goldsmith v. Stetson, 39 Ala. 191, a case similar to this, as to the question here involved, it was said, that the money did not become the property of the defendants, on judgment rendered against them for an alleged trespass committed by them, in procuring the levy of an attachment on a stock of goods in the possession of plaintiff — by mere force of the judgment in the trespass suit against them, and that it required satisfaction of such judgment in order to vest the title of the property in the trespassers. And in another connection the court said : "When the injured party has obtained a verdict and judgment for damages for taking goods, the property is changed and the right to the goods is vested in the defendant, at least after payment of the judgment.” Screws v. Watson, 48 Ala. 635. The Ohio court, in the well considered case of Acheson v. Miller, 2 Ohio St. 206, holds that, "where a party for an injury to his property, elects to proceed by an action of trespass or trover for its value, the whole proceeding relates to the time of the taking or conversion ; the controversy all relates to the property as of that time ; the criterion oí damages is . the value of tlie property at the time of such a taking or conversion/ The party in effect abandons his property as of that time to the wrongdoer, and proceeds for its value ; so that when judgment is obtained* and satisfaction made, the property is vested in the defendants, by relation, as of the time of taking or conversion. ” See also to the same effect Daniel v. Holland, 4 J. J. Marsh. 19; Hepburn v. Seawell, 4 Har. and J. (Md.) 211; Jones v. McNeil, 2 Bailey (S. C.) 466; Wooley v. Carter, 2 Halstead (N. J.) 85; Howard v. Smith, 12 Pick. 202; Thurst v. West, 31 N. Y. 210; Fox v. The Northern Liberties, 3 Watts & Serg. 107; 1 Waterman on Trespass, § 411. Now, the undisputed evidence shows, that the judgment in the trespass case against plaintiff was rendered against him on evidence tending to show that the ownership and title to the goods was in the plaintiff in the [256] said trespass suit; that defendant in that suit — plaintiff in this one — defended said trespass suit to the best of his ability, and employed able counsel and did all in his power, to prevent a recovery against him; that the judgment rendered against him was for the sum of $6,000, “the proven value of said goods and the costs of suit,” and that he paid off said judgment in full, “whichwas the full value of the goods levied on under said attachments.” This evidence is full and conclusive to sustain the averment of the complaint, that $6,000 “was the full value of the stock of goods as shown by proof on the trial as to the value of said goods ;” and also shows, that the verdict and judgment were for the value of the goods and costs of suit, and included no other element of damages. There is no room for the argument indulged, that the verdict might have included punitive damages, and it that ought not for that reason to be sustained, since it would sustain a principle that would leave room for fraud and collusion between an attaching creditor and a fraudulent defendant in attachment, by which his property might be shielded from his other creditors. As to the element of punitive or vindictive damages in a case of the kind, if the verdict were supposed to be enhanced thereby, it would always be an easy matter to show, what the proven value of the goods on the trial was, and by discarding all else, limit the liability of the defendant to their value. The value of the goods is always the most material inquiry in such cases. Under the general issue, on which this case was tried, the bona fides of the transfer of Harmon Bros, to John Harmon, the plaintiff in the trespass suit against the plaintiff, might have been investigated, and the defendants were privileged to show that the goods levied on and sold were not the property of John Harmon ; but the rightful ownership of John Harmon to the goods sold was not touched at all on the trial of this suit. The general charge for the plaintiff was rightly given, and a like charge for the defendant properly refused. Affirmed.