Hammersmith v. Avery

By the Court, Belknap, J.: The defendant, the constable of Heno township, took in execution the implements of trade of the plaintiff, a barber, who claimed them to be exempt from levy and sale. This action was brought to recover damages for the taking, and also for the interruption to plaintiff’s business. Plaintiff recovered judgment; defendant appeals therefrom and from an order denying a motion for a new trial. In order to establish the damages resulting to the plaintiff by reason of the interruption to his business, the court allowed him to prove, against defendant’s objections, the customary wages of barbers for the period of time between the seizure and plaintiff’s employment. The wages of the journeyman are fixed and certain in amount, and must be paid, whether the business of the principal is profitable or unprofitable. There is no necessary relation between the [229] profits of a principal and the wages of a journeyman, and such wages could furnish no criterion upon which the jury could act in determining the damages sustained by loss of business. Furthermore, the testimony was incompetent. The law required the plaintiff to establish his case by the best evidence of which it was susceptible. Such evidence was in his possession, and there was no necessity to resort to comparisons. The admission of this evidence was error, and the judgment must be reversed. As the case may be tried again, it is proper that the remaining exceptions should be considered. The evidence of the plaintiff' as to the ‘ ‘ offer ’ ’ made him for the property should have been rejected, because, among other reasons, the person making the offer may not have known the value of the property. “The value of an ‘offer’ depends upon too many considerations to allow it to be used as a test of the worth of property.” (Fowler v. Com’rs, 6 Allen 96.) The testimony of the witness Coleman stands upon a different footing. In testifying to his own opinion of the value of the property, he spoke of an offer made by himself. In Perkins v. People, 27 Mich. 389, and Dickinson v. Pittsburgh, 13 Gray 554, it is intimated that evidence of this nature tends to prove the sincerity of the opinion of the witness, and is admissible. An instruction was given to the effect that if the property was exempt the defendant was a trespasser ab initio. There are cases which held that way. But in California, and many other states, the right of exemption is held to be a personal privilege, which, if not claimed, is waived by the debtor. In this state we have been accustomed to proceed under the latter rule, and we prefer it—certainly in cases where the property is not of a class wholly exempt—because it is equally beneficial to the debtor and at the same time affords a protection to the officer. The reason of the rule is well expressed in Twinam v. Swart, 4 Lans. 264: “Prima facie all property is liable to execution, and it was the duty of the constable, in the first instance, to make the levy. He cannot know intuitively that property is exempt, nor, indeed, that exemptions will [230] be claimed if it is. * * * It would be intolerably oppressive to place the constable in the dilemma of liability to an action if he refuses to levy his execution, and to an action of trespass if he does.*’ The fourth instruction given at the request of the plaintiff was correct, and must be sustained as against the instruction inconsistent therewith given at the request of defendant. "We see no error in the rulings of the court upon the other instructions. The question of misjoinder of causes of action raised by the demurrer was waived by answering. (Lonkey v. Wells, 16 Nev. 271.) Judgment reversed, and cause remanded for new trial.