Farr v. State Bank of Phillips

PinNey, J. The only error assigned is that the court should have rendered judgment for the entire value of the property converted. In the case of Churchill v. Welsh, 47 Wis. 39, 45, the right of the defendant in an action of trover to return the property converted, where it is possible to do so, in mitigation of damages, was very fully considered, and it was there said that after suit brought the court will, under certain circumstances, permit the defendant “ to bring the property claimed into court for the plaintiff, with the costs up to that time, and will then order a stay of proceedings, or permit the plaintiff to proceed with the action at the risk of having the costs finally adjudged against him unless he be able to show that he has been specially damaged by the conversion of the property by the defendant, in addition to its value at the time of the return; or the court will in a proper case, after verdict, upon a tender of the property, reduce the verdict to nominal damages;” and the authorities bearing upon the subject of the return of property in actions of trover in mitigation of damages were there collated and considered. In the subsequent case of Warder v. Baldwin, 51 Wis. 450, 459, it was held that if an officer, as soon as he finds that he has by mistake levied upon the wrong property, tenders it back to the person from whose possession he took it, and leaves it on his premises, and thereafter asserts no claim to its possession, the damages recovered for the taking should be merely nominal, unless it is shown that the plaintiff has suffered, by reason of the seizure, special damages apart from the mere value of the property. The property seized in Warder v. Baldwin, supra, was a reaper in the possession of [226] the mortgagor, and to whose possession it was returned, and the action was brought by the mortgagee. It was said that, “ if no tender be shown previous to the commencement of the action, the offer then made to return the property and pay the costs should be considered.” A mistake as to the validity of a levy or the liability of property to be seized on an execution is not distinguishable, in our judgment, from a levy or seizure'of the wrong property by mistake, as in the case cited. In either case the question is as to the liability of the property to seizure and sale under the particular process. The rule is stated in 3 Sutherland on Damages, sec. 1141, to be that, “ where the defendant, in an honest and bona, fide endeavor to enforce a right or a supposed right, or to exercise a power, deals with the property in such a manner as constitutes a conversion, either because the right or the power was wholly or partially wanting, or has been exceeded or irregularly asserted or exercised, the courts generally consider the whole transaction, and award only such damages as are necessary for a complete reparation.” The case of Warder v. Baldwin, supra, establishes a reasonable and just rule, and is decisive of this appeal. There was no fact or circumstance attending the levy or sale tending to show bad faith or wanton or oppressive conduct, and calling for the application of any other rule of damages than the value of the property. It was competent, therefore, for the defendant to return the property before action to the possession of the plaintiff’s bailee or custodian, from which it was taken. No previous order of the court could have been obtained, for no action liad then been commenced. The contention that the property returned had been injhred or had deteriorated in value in consequence of the acts of the defendants, or that the plaintiff had suffered special damages for any cause, is not open for consideration, for the reason that it does not appear that the [227] plaintiff ashed to have any. such question submitted to the' jury; and there is no finding of such damages in the verdict upon which the plaintiff moves for judgment. Undoubtedly the plaintiff was entitled to nominal damages, at least, for the seizure of the property so returned; but "the neglect to include such nominal damages in the verdict and judgment, when the omission does not affect the question of costs, is not error justifying a reversal- of the judgment. For these reasons the judgment of the circuit court must be affirmed. By the Oourt.— The judgment of the circuit court is affirmed.