State ex rel. Sheldon v. Dahl

Siebecker, J. The judgment is assailed by the defendants upon the grorinds that the trial court erred in holding-(1) that this is an action in equity and that the verdict of the jury can be treated only as advisory; (2) that the defendant Dahl would have been guilty of a want of ordinary care had he turned over the first $45,000 lot of securities when the resolution of dissolution of the trust company was — 280 — recorded in the register of deeds’ office as required by law; and (3) that the surrender of the first lot of securities by the state treasurer, under the facts and circumstances shown, constitutes an injury to plaintiffs which naturally and proximately caused actual damage to the plaintiffs who were at the time creditors of the trust company, within the meaning of sec. 1791c, Stats. 1898. Counsel have made an exhaustive presentation of the questions litigated and their briefs have afforded the court valuable assistance in the study and consideration of the case. In the view we take of the case it will be necessary to discuss but one question, namely, Did the surrender of the securities by the defendant Dahl as state treasurer, under the facts and circumstances established by the evidence in the case, naturally and proximately cause the'plaintiffs any actual damage ? In the determination of this question it will be well to refer to the decision on the former appeal of the case to this court (150 Wis. 73, 135 N. W. 474), in order to have before us the law of the case as established in that decision. It was there held that the official duties imposed on the state treasurer under sec. 1791e, Stats, (ch. 504, Laws 1905), to hold securities or cash deposited by a trust company for the benefit of such parties as the statute specifies, is a duty guaranteed by the treasurer’s official bond. As to the nature of that duty the court declared: “There can be no mistake about the scope of that duty, no room for the exercise of judgment or discretion. The securities are required to remain in the possession of the treasurer for the trust purposes named ‘at all times during the existence of the corporation.’ Sec. I791e, Stats. Now if the statute fixes a definite time at which the corporation ceases to exist, there can be no question of doubt under the statute as to the duty of the treasurer previous to that time.” The court proceeded and stated that when a corporation like a trust company proceeds voluntarily to dissolve it ceases to exist for the purposes of the provisions of sec. 1791c, — 281 — Stats., when certified copies of the resolution of dissolution have been filed and recorded as required by sec. 1789, Stats. The effect of 1he decision respecting the duties of the trust company is stated as follows: “. . . after that time the treasurer remains in possession of the securities still charged with the duties of a trustee, but relieved from the absolute mandate to retain possession. During (his time if any court, having jurisdiction of the subject matter and of the parties directs that the moneys be delivered over to an officer of the court, or to a third party, the treasurer will, of course, be protected in obeying such order; probably he would be protected also in releasing the funds without the order of a court if he act in good faith and exercise reasonable care and diligence.” Whether or not a surrender in good faith without reasonable care rendered defendant liable was left an open question. The facts of the- case are now before us to determine whether or not the state treasurer, Mr. Dahl, did exercise reasonable care and act in good faith in surrendering the securities in the manner and at the times he did. The court and jiiry found that the treasurer’s actions in this regard were in the best of faith and the facts abundantly sustain this conclusion. The court and jury also found that the treasurer exercised reasonable care and diligence in the surrender of the $5,000 lot of securities on April 17, 1909, and this finding is also well sustained by the evidence. The court and jury are not agreed on the question of the treasurer’s exercise of ordinary care had he held the securities until the dissolution resolution was filed on March 2d in the office of the register of deeds and then surrendered in the manner he did on the 1st of March. The jury found that the surrender of them on the 2d of March, under the facts shown, would have been an act in the exercise of reasonable care, but the court found that under the facts and circumstances shown such a surrender would have been a want of such care. The jury’s finding, however, does not exempt Mr. Dahl from lia — 282 — bility for surrender of the securities on March 1st, the day before the dissolution resolution was in fact recorded, because the surrender of them on March 1st, as above shown, constituted a legal breach of his bond and rendered him liable to creditors, if such premature delivery naturally and proximately caused the plaintiffs any actual damage. The fact that the corporation was legally dissolved on March 2d, except for winding up its affairs, is established. This authorized the treasurer to surrender the securities at that time or thereafter, under proper circumstances, either to the owner or to creditors of the owner showing a right thereto within the contemplation of the provisions of sec. T791e, Stats. The facts are undisputed that none of the plaintiffs took any active steps to enforce their rights or obtain legal custody or secure possession of the securities for the benefit of creditors for months after March 1, 1909. It is uncon-troverted that the treasurer did, upon the demand of the Savings Loan & Trust Company, depositor and the owner of the securities, and the Union Investment Company, as as-signee thereof, surrender them to the trust company and that they were immediately turned over to the Union Investment Company under the assignment of the trust company to the investment company made November, 1908, aiid that the proceeds thereof were applied in payment of a $35,000 debt then owing by the trust company to the investment company. The facts and circumstances of the case show conclusively that the action of the state treasurer on March 1st did not cause the plaintiffs to change their course of conduct or have any connection with plaintiffs’ failure to take immediate" steps to have the securities applied in satisfaction of their claims against the trust company, and that the release of them by the treasurer on the day before the trust company was lawfully dissolved did not in fact prevent or prejudice the plaintiffs from taking any contemplated action on their part • ■to assert their legal rights to have the securities applied in — 283 — satisfaction of their demands against the trust company. Dahl has not wrongfully appropriated the securities or the proceeds thereof to his own individual use, and he has none •of their avails in his possession either personally or as state treasurer. The failure of the trust company to meet its obligations as trustee of the Blue G-rass Land Company, caused by the dissipation of the trust company’s property and securities, is wholly independent of the alleged breach of duty of the state treasurer and is solely attributable to the misconduct of the officers and agents of the trust company, and the treasurer is in no way implicated with them in their wrongdoing. The claim made against the treasurer for damages resulting from the breach of his official duty in prematurely delivering the securities is in no way connected with any legal liability for such misconduct of the corporation officials. In fact the injuries caused the plaintiffs by such official misconduct were occasioned a long time prior to March 1st. The question presented hy the record is this: Did the treasurer’s act of surrendering the securities as he did on March 1st, under the facts and circumstances of the case, naturally and proximately cause the plaintiffs any actual damage ? Of course the treasurer’s technical breach of duty in making delivery of the securities on March 1st does not of itself prove that plaintiffs suffered actual damage therefrom, nor does it vest plaintiffs with an absolute right to recover the value of the securities as the measure of their damages. The gravamen of the cause of action stated • in the complaint is that the alleged breach of the treasurer’s legal duty on March 1st caused plaintiffs the loss of the securities and thus caused them the actual damage of losing payment of their bonds. The relief demanded is clearly and plainly compensation for damage alleged to have been naturally and proximately caused by this breach of legal duty. The ordinary rules of proof of damages to compensate for injuries recognized in the law are applicable in this case. It is ele — 284 — mentary that damages must be certain in their nature and that they are to a reasonable certainty the natural and proximate result of a known cause. Applying these rules to the facts before us, we have an established and certain breach of a legal duty by the treasurer in that he surrendered the securities on March 1st, contrary to law. It also-appears that on March 2d, or any time thereafter, he had the legal right to surrender the securities to the parties to whom he delivered them on the 1st of March, if the delivery was made in good faith and in the exercise of reasonable care. The evidence shows that the mere surrender of them on March 1st was no more than a technical breach of duty. It also appears that the plaintiffs were not thereby induced to forego any immediate active steps to enforce a claim to these securities, nor is there any evidence tending to show that plaintiffs’ relations to these securities would have been different in any particular than they actually are and have been, if such transfer had taken place on March 2d instead of March 1st. We have made exhaustive search to find any evidence tending to show that different consequences'did immediately flow .out of the surrender of the securities on March 1st than possibly could have resulted from a surrender of them on March 2d, or at any time up to April lYth when the last $5,000 lot was surrendered, and we find the record barren of evidence tending to show that the consequences would have been different from what they actually are. It is therefore self-evident that the surrender of the securities on March 1st in fact caused no more actual injury or damage than a surrender of them on the 2d of March or at any time up to April lYth would have caused. It necessarily follows from these facts that the plaintiffs’ beneficial interest in the securities was not affected by the bare fact of the premature surrender of the securities on March 1st instead of March 2d, or at any time thereafter before the plaintiffs took active steps to enforce their beneficial interest in them. As held by the circuit court on this point: “They are as well off in every re — 285 — spect as they would have been had the surrender been made at the later time instead of when it was.” We are also fully satisfied that the treasurer properly surrendered the $5,000 lot of securities on April 17th. As above stated, the evidence amply sustains the court and jury in finding that he acted in good faith and with due care in making this surrender. We are persuaded from all the facts and circumstances disclosed by the evidence that Dahl would have surrendered all the securities not later than April 17, 1909. The trial court entertained the view that if Mr. Dahl had waited another day before surrendering any securities, it is conceivable that he might not have surrendered them at all to the trust company, and even though it is shown that he would have turned them over when he learned that the dissolution resolution had been properly filed, “we cannot say that he certainly” would have done so. We are convinced that the record clearly negatives this conclusion. It appears that Mr. Dahl learned of some claims against the securities and that he had conferences, interviews, and correspondence in the matter, yet nothing came to his knowledge that suggests he would have taken a course different from what he did. Nor is there any fact or circumstance tending to show that the actual state of affairs of the trust company and the unfortunate conditions of its creditors would properly have come to his knowledge. To say he might have learned things which would have caused him to hold the securities and that these plaintiffs would have received a benefit therefrom, is a mere speculation and conjecture. All the evidence clearly preponderates to refute such claims and tends to show that he would have surrendered the securities on or before April 17th, and that such a surrender would have been, as the one on April 17th actually was, in good faith and in the exercise of due care and diligence. The inference from these ultimate facts in the case leads to the irresistible conclusion that plaintiffs suffered no actual damage immediately flowing out of the breach of duty of the treasurer on March 1st. Though this technical breach — 286 — of duty is in law presumed to be an injury causing some damage, tbe evidence fails to show with any reasonable certainty that it naturally and proximately caused tbe plaintiffs any actual damage. This injury can be said to have resulted in no more than tbe legally presumed nominal damage. Tbe principle ruling tbe question of damages for official breach of duty applicable when a sheriff fails to produce tbe body of a debtor, as required by law, or bis failure to attach and seize property under command of tbe law to satisfy tbe claim of a judgment creditor, is an exception to tbe general rule measuring tbe liability of officers for breach of official duty, and is not applicable here. 1 Sutherland, Damages, § 160. In tbe case of Dow v. Humbert, 91 U. S. 294, tbe strict rule of damages in such cases was held to have been modified, tbe court declaring: “It is not easy to see on what principle of justice tbe plaintiff can recover from defendants more than be has been injured by their misconduct. If it were an action of trespass, there is much authority for saying that plaintiff would be limited to actual and compensatory damages, unless tbe act were accompanied with malice or other aggravating circumstances. How much more reasonable, that for a failure to perform an act of official duty, through mistake of what that duty is, that plaintiff should be limited in bis recovery to bis actual loss, injury, or damage!” Tbe court held in substance that in tbe absence of proof showing that actual damages were naturally and proximately caused by an omission of official duty, only nominal damages are recoverable where a liability exists. This rule underlies tbe decisions in State v. Bœtz, 44 Wis. 624; State v. Ruth, 14 S. Dak. 92, 84 N. W. 394; and Branch v. Davis, 29 Fed. 888. It is considered that upon tbe record it is shown that tbe defendant Dahl acted in good faith in surrendering tbe securities on both March 1st and April 17th, and that though Dahl technically breached bis duty in surrendering part of — 287 — such securities on March 1st, one day before he could legally do so, such breach of duty did not naturally and proximately cause plaintiffs any actual damage, and hence no more than nominal damages can be awarded. This result renders it unnecessary to consider any of the other questions presented to the court on this appeal. By the Court. — The judgment appealed from is reversed, and the cause remanded to the circuit court with direction to enter judgment awarding the plaintiffs nominal damages and awarding the defendants judgment for costs. YIN je, J., took no part.