Rocheleau v. Boyle

Harwood, J. The question raised relates to the measure of damages allowable in this action, or, in other words, the amount which a mortgagee is entitled to recover from an officer for the wrongful attachment of mortgaged chattels. The posi [595] tion taken by the parties in reference to the case, when the jury was impaneled for the trial thereof, resulted from the state of the pleadings, and the diverse views held by the parties respecting the measure of recovery to which the plaintiff was entitled. The complaint alleges the existence of the mortgage in favor of plaintiff, and describes the chattels held thereunder to secure the payment of one thousand dollars and interest, owing to him by said mortgagee, and alleges the taking of all said chattels, under writs of attachment, by defendant Boyle, as constable, without payment, tender, or deposit of the mortgage debt, as provided by statute; and upon those allegations demands judgment for the sum of one thousand dollars, interest and costs. There was no allegation in the complaint as to the value of the chattels taken by the officer, in order to fix the measure of damage committed by him in taking and converting the same. Plaintiff’s theory was that having taken the chattels mentioned in the mortgage, without payment or deposit of the mortgage debt, the officer was liable for that debt and costs of suit, irrespective of the value of the property taken. Defendant met the allegations of the complaint by showing that part of the chattels alleged to be subject to the mortgage were not subject thereto (as appears by the former adjudication), and denied positively the taking of certain other articles specified as subject to said mortgage, and which he was charged with having taken, and admitted the taking of some of the chattels subject to the mortgage. What was plaintiff entitled to recover for the articles admitted to have been taken while subject to said mortgage? Plaintiff’s counsel insisted, at the time the case came on for trial, that plaintiff was entitled to recover the whole amount of the mortgage debt, without allegation or proof of the value of the property taken by the defendant, or the amount of damages actually suffered by the mortgagee by reason of the taking of a portion of the chattels mentioned in the complaint, because the statute provides that, before the attachment of mortgaged property, the officer seizing must payor tender to the mortgagee, or deposit in the county treasurer’s office, in the county where the chattels are situate, the amount of the mortgage debt for the mortgagee. (Comp. Stats. § 1546, div. 5.) The court adopted this view. [596] and directed a verdict accordingly. But probably.the court would not have adopted that view if its attention had been called to, and it had considered, certain cases wherein this very question has been critically considered, resulting in a conclusion contrary to the holding of the court in this case. (Keith v. Haggart, Dakota, May, 1887, 33 N. W. Rep. 465, and Irwin v. McDowell, 91 Cal. 119.) These cases affirm the proposition that this action is in the nature of an action for conversion of personal property, and that the measure of damage to the mortgagee is the value of the chattels converted, and limited, also, to the mortgagee’s interest therein, and certain incidental expense and loss of time occasioned by the wrongful conversion; that is to say, the recovery shall not, in any event, exceed the value of the mortgaged chattels taken and converted, together with such other damage as immediately results to the mortgagee from the wrongful seizure and conversion, such as loss of time and expense laid out in pursuit and discovery of the property. Nor can the recovery in favor of the mortgagee in any event exceed the mortgage debt, interest, costs, and incidental damages aforesaid, although the value of the property may greatly exceed the aggregate o[ those items; because the mortgagee’s interest in the property does not exceed the amount of the debt and interest secured by the mortgage. This rule was adopted in the cases cited above, after a thorough consideration, and in view of the statutory provisions as to the attachment of mortgaged property, substantially like those in this State, on the same subject. We have no hesitation in affirming that rule as the proper measure of recovery in such cases. To hold the officer liable for the whole mortgage debt, whether he took the whole or a fraction of the mortgaged property, and irrespective of the value of the property taken, or the actual damage resulting to the mortgagee by the taking thereof, leads to absurd, unjust, and even unconscionable results. There is nothing in the statute indicating an intention on the part of the legislature to introduce such a rule, or to change the long established rulé as to the measure of damages for the wrongful taking and conversion of property. The important object to be effected by that statute was the subrogation of the attaching creditor to the rights of the mortgagee, by force of the statute, on payment of [597] the mortgage debt to the mortgagee, as provided, and thus to enable the attaching creditor to enforce a sale of the mortgaged property, and the application of any value therein, over and above the encumbrance, to the satisfaction of his claim. This statute was undoubtedly enacted for the benefit of unsecured creditors in such eases. It was not intended to deter creditors from testing the validity of chattel mortgages by providing an unusual, unjust, and oppressive measure of damages in case the mortgage was sustained, even as to a part of the chattels mentioned therein. If the tendency of the opinions in the cases of Wood v. Franks, 56 Cal. 217, and the same ease again in 67 Cal. 32, and in Sherman v. Finch, 71 Cal. 68, was in support of the position taken by respondent’s counsel, the error and unreasonableness of such an interpretation and application of the statute were exposed by the able reasoning of Chief Justice Tripp of Dakota, in Keith v. Haggart, Dakota, May, 1887, 33 N. W. Rep. 465. Not only so, but in the recent case of Irwin v. McDowell, 91 Cal. 119, the California court repudiates such a construction, and distinguishes the earlier California cases referred to. Respondent’s counsel say in their brief: “If this were an action for the conversion of the property, the plaintiff should allege and prove the value.” The authorities hold it to be an action in the nature of conversion of the mortgagee’s interest in the chattels in question, and no cases are cited to the contrary, leaving out of consideration the early California cases mentioned above, which, in the light of later decisions, are no authority to support a contrary view. We hold that plaintiff must allege and prove the value of the property converted, in order to support a judgment in his favor. The judgment entered by the trial court is therefore reversed, at the costs of respondent, and the cause remanded. Reversed. Blake, C. J., and De Witt, J., concur.