Marqueze v. Sontheimer

Campbell, J., delivered the opinion of the court. There was no error in the modification by the court of the fifth, sixth, seventh, and ninth instructions given for the plaintiffs. The sixth was not proper after being modified. It related to representations made by the defendant after the purchase of the goods. The modification of the fifth and ninth instructions introduced into each of them the qualification, before omitted from them, that the representations made by the defendant to obtain the goods must have been known to him to be untrue, and therefore were not made in good faith. A purpose to defraud is necessary to constitute a fraudulent contracting of the debt within the meaning of the eighth ground for attachment contained in § 2415 of the Code of 1880. The seventh instruction as asked presented the proposition that, if the defendant was in a condition, with respect to his property, which disabled him to dispose of it by his own act, and knowing this he obtained goods from the plaintiffs by a promise to pay which he knew he could not perform, the jury must find for the plaintiffs. The evidence was that the defendant had executed a deed of trust conveying part of his property, but not all of it, and it was to this evidence that the instruction was intended to apply. There was no evidence of a complete disposition of his property so as to cause the defendant to know, when he obtained the goods, that he could not send a sight draft for them as he promised; and it would have been improper to give the instruction as asked, because the testimony did not warrant the hypothesis of the total disability to pay, as promised, which alone could impart knowledge to the defendant that he could not do what he promised. The modification, by striking out the words “ they must find for the plaintiffs,” and substituting, “ this is a fact to be considered by the jury, as to whether the defendant acted fraud [439] ulently or not,” is all that made the instruction proper. The fact that the defendant had incumbered a considerable part of his property was to be considered by the jury in passing on his conduct. With the modification the instruction is of doubtful propriety, because of the want of evidence to which to apply it as expressed. It should have been differently worded. No objection was made in the court below to any of the instructions given for the defendant, except to the fourth, fifth, and sixth. The sixth is free from objection. The others are not. The issue was whether the debt was “ fraudulently contracted.” That involved a wide range .of investigation. If the defendant, as an inducement to the plaintiffs to send the goods ordered, promised to send a sight draft to pay for them, and, at the time, entertained the purpose not to send the draft as promised, the debt was fraudulently contracted. Both of these instructions omit this proposition, and the fourth announces that if the defendant believed, when he ordered the goods, that he would be able to pay for them as promised, he was acquitted of the charge of fraud. This narrowed the inquiry too much, and excluded the idea of intention, at the time of ordering the goods, not to pay for them as promised, which should have been left open to inquiry. Whether the plaintiffs might successfully have argued the existence of such a purpose on the part of the defendant or not, they should not have been barred from this line of attack. It is not true that the defendant must have known or had reason to believe that he could not pay for the goods as promised, as announced by the fifth instruction. He may have believed that he could, but if he did not intend to do it he was guilty of a fraud in obtaining the goods. The seventh instruction for the defendant was not objected to, and we cannot consider it, but will consider, if the verdict assessing damages for wrongfully suing out the attachment is excessive, tried by that instruction, and upon the evidence introduced without objection ; and we have no hesitation to say that it is grossly excessive, and should have been set aside. That instruction authorized the finding of damages for an attorney’s fee, and actual damage to the business of defendant as a merchant, and for loss of credit occasioned to the defend [440] ant by tbe attachment. We are to try the verdict by the evidence and instruction, conceding for this inquiry the admissibility of the evidence and the correctness of the instruction, neither of which was objected to. It is manifest that the jury gave damages on the basis of holding the plaintiffs liable for all that happened to the defendant after the attachment sued out by the plaintiffs was levied. The instruction did not authorize this, but limited the jury to assessing such damages to business and to credit as the evidence showed “ was done to the defendant by the attachment in this case.” Such damages as this particular attachment, by itself, without regard to what others did, occasioned to the defendant, were authorized by the instruction. It is certain that the issuance of an attachment for three hundred and forty-nine dollars and fifty cents, and the seizure under it of goods to the value of six hundred and eleven dollars and forty-seven cents, did not injure the business and credit of the defendant to the extent of five thousand dollars or any approximate amount. The idea seems to have been that, in consequence of the issuance of this attachment, other creditors proceeded coercively against the defendant, and that the damage done by all of them was to be recovered from the plaintiffs, who made the first attack. This was not authorized by the instruction properly interpreted.. As this case will be remanded for a new trial, we will express some views suggested by it, and applicable to it, for the guidance of the court below on the question of the damages recoverable, on the trial of the issue, for the wrongful suing out of the attachment, if it shall be found to have been so issued. As a rule, every one is liable for his own wrong, and not for that of another. A wrong-doer is responsible for the consequences produced by his own act, but not for wdiat others, acting independently of him and for themselves, may do, even though his act may be the occasion of their doing what they do. That another independent agent, acting on his own responsibility, does something, because one has done a particular thing, does not make such one responsible for the act of the other. They are independent actors, and each is answerable for his [441] own acts, because of the want of causal connection between the acts. Consecutive wrongs done by independent agents cannot be conjoined to increase or enlarge the responsibility of one of them. If others attach or levy executions, after another, and because he has attached, they are responsible severally for what they do, and the first attaching creditor is not responsible for any injury occasioned by the acts of the others, although they merely followed his example. He must answer for his own wrong, and respond in damages, as assessed by the jury, for all “ actual damages, if any, which the issuance of such attachment has occasioned” the defendant. By “actual damages” we understand to be meant those actually sustained, as the direct result of the wrongful attachment, and certainly traceable to it as a cause, and not such as are uncertain, contingent, speculative and conjectural, or the result of the act of another person responsible for his own wrong. The Code of 1857 provided for the assessing, by the jury, for wrongfully' suing out an attachment of “the damages against the plaintiff.” Code 1857, 377, art. 14. The Code of 1871, § 1462, authorized the defendant, on the trial of such issue, to give evidence of “ all damage he has sustained, including lawyer’s fees, travelling expenses, hotel bills, loss of trade and special injury to his business.” The Code of 1880, § 2430, provides for the assessing of “ actual damages ” occasioned to the defendant by the attachment. In Fleming v. Bailey, 44 Miss. 132, which was tried under the Code of 1857, it was said by the court that in trying the issue the jury had “ as large a scope to consider and estimate the damages, as in a suit on the attachment bond.” In Myers v. Farrell, 47 Miss. 281, under the Code of 1871, the court, after suggesting that the Code of 1871 enlarged “ the elements of damages,” by allowing “ loss of trade and special injury to business ” to be taken into account, declared that it did not “ think that the legislature meant that so wide a latitude should be given as to compute losses of profits in trade so speculative and remote, and so incapable of probable certainty, as may have been allowed in” that case. In the opinion, the court propounds this question: “ If the storehouse of a retail merchant is closed up by an improvidently issued attachment, must the jury go into a cal442 dilation of profits which the trader may make, which are contingent and uncertain, often more plausible upon paper than are actually realized ? ” but does not specifically answer it. In Roach v. Brannon, 57 Miss. 490, decided with reference to the Code of 1871, it was held that “ The allowance of damages for the wrongful issuance of an attachment . . . must be compensatory only,” and a verdict assessing damages at six hundred and forty dollars for the wrongful issuance of an attachment for four hundred and thirty-four dollars was set aside as being excessive. It is evident that the Code of 1880, in providing for the allowance of the “actual damages” occasioned to the defendant by the wrongful attachment, did not enlarge, if it did not restrict, the scope of inquiry into the damages resulting from the attachment. In view of the construction placed on the former law, it must be held to have been designed to limit rather than extend the damages allowable in such cases, and to exclude all but compensatory damages caused by the issuance of the attachment. According to the utterance quoted above-from the opinion in Fleming v. Bailey, 44 Miss. 132, such damages are allowable in this issue, as would be recoverable in an action on the attachment bond. With respect to this, Drake on Attachment, § 175, asks, “ What is this actual damage ? ” and answers, “ On general principles it must be the natural, proximate, legal result or consequence of the wrongful act. Remote or speculative damages, resulting from injuries to credit, business, character, or feelings, cannot be recovered.” It is further said, in the same connection, “ Actual damage may be properly comprehended under two heads: 1. Expense and losses incurred by the party in making his defence to the attachment proceedings ; and 2. The loss occasioned by his being deprived of the use of his property during the pendency of the attachment, or by an illegal sale of it, or by injury thereto, or loss or destruction thereof. For losses and trouble of these descriptions, the attachment defendant should be liberally remunerated.” The text quoted is sustained by many cases. We have no doubt that it is proper to allow the damages proved to have arisen from a loss of. business with respect to the goods seized under the attachment; that is, in so far as [443] the seizure of goods under the attachment suspended business and caused loss as to those goods, it may be a factor in the computation of damages, if shown as a matter of fact, and not as the mere opinion or estimate of witnesses, as held in Alexander v. Jacoby, 23 Ohio St. 358. Without undertaking to enumerate all of the elements for the allowance of damages in the trial of issues for the wrongful issuance of'attachments, and contenting ourselves with what we have said, as sufficient for this case, we reverse the judgment, set aside the verdict, and remand the cause for a new trial. . Reversed and remanded.