Howell, Jewett & Co. v. Caryl & Co.

Smith, P. J. — This is an action of trespass de bonis asportatis. It appears from the evidence that one Martin Lund was a dealer in lumber and building material at Burlingame, Osage county, Kansas, and was indebted to the plaintiffs and Caryl & Co. (a firm composed of defendant and Barker), who were wholesale lumber dealers respectively at Chicago and Kansas City. It appears further that Lund was indebted to the former in the sum of $1,800, and to the latter in the sum of $158.95, evidenced by a promissory note. The undisputed evidence was that the plaintiffs were put in possession by Lund of his entire stock of lumber and builders’ material for the purpose of securing them m the indebtedness of the latter to the former. While the plaintiffs were so in possession, Caryl & Co. sent their note to Mr. Russell, an attorney at Burlingame, for collection.' In the letter of transmissal Caryl .& Co. use this expression: “Please inform us if there is not some way by which the balance can be collected, and that at once by attachment or otherwise 1” .It does not appear that Russell made answer to the interrogatory thus propounded- to him. It seems that Russell was representing the plaintiffs in respect to some questions that had arisen in litigation under their claim to the Lund stock of lumber. It further appears that — 447 — Mr. Russell placed the note of Caryl & Co. in the hands o^ another attorney, Mr. Fish, and requested him to see Lund, get him to confess judgment before •a justice of the peace, then to issue execution thereon .and have the same levied on the lumber so in possession of plaintiffs. It appears Fish complied with Mr. Russell’s request. The execution was issued and placed in the hands of a constable, who levied the same according to the directions of Mr. Fish. The lumber so levied on was removed by the constable to another place, and there piled up; while it was thus in the constable’s possession Mr. Russell directed him to release it from the levy, which was done. Mr. Russell offered to return the lumber ■ to plaintiffs with reasonable damages for the taking and detention, but the plaintiffs refused to receive it, saying it had depreciated in value, and was not in the same condition it was when taken by the constable. It appears the lumber was taken and sold under other executions so that it was lost to both plaintiffs and Caryl & Co. It does not appear that Caryl & Co. were aware of the action of Mr. Russell in the matter, until the plaintiffs brought this action against them to recover the value of the lumber which the constable took from them. The plaintiffs had judgment, and the defendant Caryl has appealed. I. The first ground upon which the defendant challenges the judgment is that the trial court erred in its action in admitting in evidence the copy of the mortgage for the reason that instrument was not certified according to the act of congress, nor was it a record -or exemplification of an office book within the meaning of section 4844, Revised Statutes, nor was there any foundation laid for the introduction of secondary evidence. The certificate of the register of ■deeds of Osage county, in the state of Kansas, declared — 448 — “that the said instrument was a true copy and transcript of the original chattel mortgage as the same appears of record in my office.” Under the statute of the state of Kansas, which was in evidence, every mortgage of personal property which shall not be accompanied by an immediate delivery and followed by actual and continued - possession shall be absolutely void as'against the'vendees of the mortgagor, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the-county where the property shall be situate. Upon the receipt of any such instrument the register shall indorse on the back thereof the time of receiving it, and shall file the same in his office to be' kept for the inspection of all persons interested. A copy of any such original instrument or any copy thereof so filed and certified by the register shall be received in evidence but only of' the fact that such instrument was received and filed according to the indorsements of the register therein, and of no other fact. Compiled Laws of Kansas, art. 2, ch. 68, secs. 9, 10, 13. Now it is obvious enough that the certificate of the register of deeds proves no more than that the instrument was received and filed by him according to his indorsement thereon. This certificate does not prove the execution of the instrument, and this did not entitle it to be received in evidence, even in Kansas. A mortgage, to be valid, is not required to be acknowledged under the laws of that state. Nor is it required, as in this state, to be recorded before it is valid and binding. As neither a mortgage nor a copy thereof is required in that state to be recorded in order to obtain validity, it is quite difficult to understand how a copy of such an unrecorded instrument can be regarded as “a record or exemplification of the office books kept in any public office” of our sister state of Kansas, within — 449 — the meaning'of section 4844 of our statute already referred to. State v. Pagels, 92 Mo. 300. It is not pretended that the instrument is authenticated in conformity to the laws of the United States in relation to the authentication of public acts, records and judicial proceedings The instrument was in the lawful custody of the register of deeds of the proper county. There seems to be no statutory authority for its withdrawal for any purpose. Under such circumstances, it seems very strange that, upon proof of the execution and registration of the instrument, a sworn copy thereof would not- be primary evidence. Karr v. Jackson, 28 Mo. 316. Our attention has been called to no adjudication in the state of Kansas to that effect, and, perhaps, there is none such. But, however all this may be, it is undeniably true that at common law a valid mortgage of personalty may be made without writing. Hughes v. Menefee, 29 Mo. App. 192. By statute, the common law, as modified by the constitutional and statutory law, is in force in aid of the general statutes of the state of Kansas. Comp. Laws of Kansas, ch. 119, sec. 3. If the evidence does not show a valid mortgage, either at common law or under the statute, it does show a valid common-law pledge. Roeder Bros. v. Brewing Co., 33 Mo. App. 49; Conrad v. Fisher, 37 Mo. App. 352. The plaintiffs were placed in possession of the property by Lund, to secure their debt. This is not questioned. Neither Lund nor any other creditor of his had a right to the possession of the property, as against plaintiffs, until their debt was satisfied. Roeder v. Brewing Co., 33 Mo. App. 69; Altgear v. Walsh, 24 Mo. App. 134. So it is of no consequence whether the mortgage was properly admissible in evidence or not, since, upon the undisputed facts, the plaintiffs were rightfully in possession of the property as a security which had been — 450 — pledged to them by Lund for their debt, and the title .thus acquired was sufficient to support this action. Dolan v. Van Demark, 35 Kan. 305; Swiggett v. Dodson, 38 Kan. 706; Ryan v. Leed, 31 Kan. 336. II. The appealing defendants further contend that the trial court erred in giving an instruction for plaintiffs which, in effect, told the jury that if Oaryl & Co. ■caused an execution to issue on their judgment against Lund and placed it in the hands of the constable, and that the same was levied on lumber described in the ■chattel mortgage, which was in possession of plaintiffs .against the objections of-plaintiffs, and that the constable took the lumber from the possession of plaintiffs .and removed the same, then Caryl & Co. were liable to plaintiffs for the value of the lumber. "When a plaintiff places an execution in the .hands of an officer for service, he is presumed to intend that no action shall be taken thereunder not authorized by the terms of the writ. The officer may seize the property of a stranger or do any other unauthorized act without creating any liability against the plaintiff, because the plaintiff is not presumed to have directed or ratified the illegal transaction. But this presumption may be rebutted. The injured party may show the plaintiff was a co-trespasser with the officer, and may make both responsible for the .abuse of the writ. So, where the plaintiff advises or directs it to be made, he is a co-trespasser with the officer. Perrin v. Claflin, 11 Mo. 13; Canifax v. Chapman & Wells, 7 Mo. 176; Page v. Freeman, 19 Mo. 422; Freeman on Executions, sec. 273; Mechem on Public Officers, sec. 904; Mechem on Agency, sec. 839. In Dameron v. Williams, 7 Mo. 139, it was declared that if a constable, acting under authority of plaintiff’s execution, sold property which had been previously conveyed by defendant to one Williams to secure a debt, without any communication with the execution — 451 — plaintiff, he, Williams, might notwithstanding, have maintained his action on the case against the execution plaintiff; for the constable sold the property for the benefit of the latter, and at his implied request. But the ruling in the last-named case is not in harmony with that announced in Canifax v. Chapman & Wells, supra, and the rule stated in the latter case is the one generally adopted by the courts and text-writers, and which we feel it our duty to follow. The evidence ■shows that Russell, who was the attorney of Caryl & Co., directed Fish to cause the levy of the executions. But if the acts of Fish were without authority, if Russell could not delegate his authority to Fish, still, after Fish had caused the property to be seized and removed by the constable, the former adopted the acts of Fish; for' Russell immediately thereafter wrote to Smith, the .attorney for plaintiffs, that he had levied on all the mortgaged property; that as “the mortgage was no good” he would fight it. There can, therefore, be no ■question but that Russell, the attorney for Caryl & Co., advised and directed the levy or, at least, did that which was equivalent to it. Perrin v. Claflin, supra. The only question then is whether Caryl & Co. are responsible for the acts of their attorney in advising .and directing the trespass. Vaughn v. Fisher, 32 Mo. App. 29, was where the sheriff had wrongfully levied a writ of attachment upon certain property, and, after the levy had been made, the attorney for the attaching plaintiff moved the court issuing the writ for an order to sell the attached property. It was contended in a suit by the owner of the property so wrongfully seized .and sold under the attachment against the attaching plaintiff, that the plaintiff was not liable for the reason the trespass was committed by others, and that there was no evidence of ratification of their acts by him. It was said by the judge who delivered the opinion in the — 452 — case: “No special direction by defendant to Ms attorney was necessary to -make tbe defendant liable for tbe attorney’s act in procuring tbe order of sale. Under bis general employment tbe attorney, in procuring tbe order of sale, was acting as tbe authorized agent of tbe defendant, and bound defendant. Had tbe defendant’s attorney directed tbe sheriff to levy on tbe property tbe defendant would have been bound by tbe direction as if be bad given it in person. In making tbe motion for tbe sale of tbe property tbe defendant’s attorney was acting strictly within tbe limits of bis authority as such attorney.” So, it was declared in Davis v. Hall, 90 Mo. 659, 665, that “the authority of an attorney in virtue of bis employment extends tó tbe conduct and management of tbe cause in which be is engaged, in and out of tbe court; and be may do all things incidental to tbe prosecution of tbe suit, and which affect tbe remedy only, and not tbe cause of action.” In Guillaume v. Rowe, 94 N. Y., it was said that a party is bound by tbe acts of bis attorney, although be does not give immediate direction as to tbe proceedings in an action, or is not with him at its successive stages. In Poucher v. Blanchard, 86 N. Y. 256, it was said that tbe law which regulates tbe relation between attorney and client is that of agency, and it is elementary law that tbe principal is bound by tbe acts of bis agent performed within tbe scope of bis authority, and be is thus not only bound by tbe contracts of bis agent, but is responsible for bis negligence and wrongful acts. In Foster v. Wiley, 27 Mich. 244, it was declared by Mr. Justice Cooley, who delivered tbe opinion in the case, to be tbe result of all tbe authorities, that when one puts bis case against another in tbe bands of an attorney for suit, it is a reasonable presumption that tbe authority be intends to confer upon tbe attorney includes such action as tbe — 453 — latter in Ms superior knowledge of the -law may decide to be legal, proper and necessary, in the prosecution of the demand, and consequently whatever adverse proceedings may be taken by the attorney, are to be considered so far as they affect the defendant in the suit as approved by the client in advance, and, therefore, as his act even though they prove to be unwarranted by the law. According to the principles announced in the foregoing authorities it would seem that when Caryl & Co. put their note against Lund in the hands of Russell, their attorney, for collection by suit, that they thereby conferred upon him the authority to take such action as he should decide necessary in the prosecution of their demand, and, therefore, if the latter directed a wrongful levy on the mortgaged property or ratified such wrongful levy after made, then the former must be held as having approved the same, and are, therefore, liable for the wrong complained of. And whether the words of the letter from Caryl & Co. to Russell already quoted were those of inquiry or direction cannot alter the casé, since it is not disputed that Russell was engaged by Caryl & Co. to collect the note. He was the agent of Caryl & Co., and, if while acting in the furtherance of their interest he directed or subsequently approved the commission of the wrong for which this action is brought, they are' liable to the plaintiffs therefor. We do not, therefore, think the trial court erred in giving the instruction in this paragraph referred to. III. The further ground of appeal is urged that the trial court erred in giving plaintiffs’ instruction, numbered 1, which told the jury if the defendants offered to give possession of the goods seized under their execution against Lund, and that the goods were then in as good condition as when seized, the jury — 454 — should consider that tender in mitigation of damages; but such tender will not prevent plaintiffs from recovering the value of the goods, with interest, from the date of their seizure, if you find that at the date of such seizure plaintiffs were in the exclusive possession of said goods under their chattel mortgage. If you find for plaintiffs you will allow them only for such property embraced in the mortgage as was seized by the constable under the execution in favor of defendants against Lund. The undisputed evidence shows that the constable levied the execution of Cqryl & Co. on two parcels of lumber, one which was on what is termed the Lund lot and the other the Playford lot. The value of the two parcels was $1,400. That on the Playford lot was of the value of $900, and that on the Lund lot was of the value of $500. The lumber on the Playford lot was taken by the constable against the will of plaintiffs and by the employment of force and removed to the Lund lot where it was roughly piled up and mixed. That which was on the Lund lot when the levy was made remained in statu quo. The attorney of Caryl & Co. directed a release of the levy, and then offered to restore all the lumber, which plaintiffs refused to accept. The rule of law in such cases is that if there be a wilful taking of the property, or the property suffered any injury or deterioration in value, the defendant cannot compel the plaintiff to accept the property even in mitigation of damages. Ward v. Moffett, 38 Mo. App. 395. And evidence that the defendant has relinquished all claim to the property, that he never removed it from the place where it originally was, and never, in point of fact, converted it to his own use, has been held admissible in mitigation of damages, Delano v. Curtis, 7 Allen (Mass.) 471. According to these rules,, the seizure and removal of the lumber which was on — 455 — the Playford lot was of such a character as to relieve the plaintiffs of any obligation to accept it when Caryl & Co. offered to return it. And, on the other hand, if Caryl & Co., after the seizure, release and offer to return the lumber on the Lund lot, had kept or preserved the same for the plaintiffs7 use, then such offer back, with continued readiness to restore, would have, under the rule announced in Ward v. Moffett, 38 Mo. App. 395, constituted a proper matter in mitigation of damages. But, under the facts which the evidence tends to prove, there was no case which would justify the court in giving an instruction in respect to the mitigation of damages. It was the duty of Caryl & Co., after the offer to return the property and its nonacceptance, to preserve the same so that they could be continuously ready to restore it, and failing in this, as was the case, there were no grounds of mitigation for the jury to consider. The instruction is palpably erroneous. It is contradictory. It tells the jury that, if they found certain facts, they should consider the same in mitigation of the damages, and, in the same connection, it further tells them that such mitigating facts must not prevent plaintiffs from recovering for the value of the goods seized, with interest from the date of the seizure. But notwithstanding this error, since there is no evidence of mitigation within the rule just stated, it is not perceived that Caryl & Co. were injured by the error. The error is not one for which the judgment will be reversed. IY. The defendants7 further ground of assault upon the judgment is that the execution under which the constable made the levy was void. Without entering into an extended discussion of this point of objection, it is sufficient to say that if the execution was void it afforded no protection for the constable nor to Caryl & Co. who advised and directed or subsequently rati456 fled the act of the constable in seizing the plaintiffs’ property. Prima facie, they were trespassers ab initio for seizing the property under it. Barker v. Braham, 2 Wm. Blacks. 866; Gunz v. Heffner, 33 Minn. 215; Snydacker v. Brosse, 51 Ill. 361; Foster v. Wiley, 27 Mich. 244; Kerr v. Mount, 28 N. Y. 659-664; Chapman v. Dyett, 11 Wend. 31; Lyon v. Yates, 52 Barb. 237; Smith v. Shaw, 12 Johns. 257; Coddington v. Lloyd, 8 Ad. & L. 449; Thomas v. Hinsdale, 78 Ill. 259. We have carefully considered the other points made in the very elaborate and exhaustive brief of the defendant; but find nothing therein which would justify us in reversing the judgment. We do'not think any of the vices pointed out in the plaintiffs’ instructions are such as prejudice the defendants on the merits. The judgment must be affirmed. All concur.