Alexander v. Helber, 35 Mo. 334

Alexander v. Helber

35 Mo. 334 | Mo. | 1864

Bates, Judge,

delivered the opinion of the court.

This was a suit to recover damages for the unlawful seizure and sale of a negro boy. The defendant attempted to justify his acts upon the ground that he was marshal and ex-officio collector of the town of Farmington, and acted in performance of his duty as such collector, as the means of col*340lecting a tax winch the plaintiff owed that town. It appears that the .town of Farmington was incorporated by the county court of St. Fran§ois county, under the act of the General Assembly which gave to county courts that power, and that the trustees of the town had passed an ordinance which required the collector to seize and sell personal property of persons who refused to pay the taxes assessed against them ; that the plaintiff had refused to pay a tax assessed against him; that the defendant then seized the negro boy and proceeded to sell him, when one Hunt (a brother-in-law of the plaintiff) bought the boy. The negro was never in fact taken. from the plaintiff, but when the defendant told the plaintiff that he must have the money or that he would levy on property, the plaintiff pointed out the negro as the property to be seized (at the same time protesting against the legality of the seizure) and retained the boy in his own possession by giving the defendant a bond to produce the boy at the sale. He did produce him, and the defendant put him up at auction, and sold him to Hunt. The negro then returned to the plaintiff and remained in his possession under an agreement with Hunt, that he (the plaintiff) would pay Hunt hire for him, and afterward the plaintiff bought the negro from Hunt. At the sale the plaintiff gave public notice of the illegality of the sale, and warned the persons present not to buy, because they would get no title to the negro. A large portion of the money for which the negro was sold, was paid to the plaintiff by the defendant. There was verdict and judgment for the plaintiff, and the defendant appealed.

The first instruction given by the court in effect declared, that the seizure and sale by the marshal, without a judgment of a court, was illegal, and that the plaintiff might recover the damages which he may have sustained by the seizure and sale. This instruction stated the law correctly. Although the town ordinance authorized the seizure and sale, yet the general laws under which the town was incorporated did not give it authority to pass the ordinance.

The act of the General Assembly gave to the town the *341power to levy and collect tases; and another section of the law (14th) provided that, “ if any person fail to pay any tax levied on his real or personal property, the town collector may recover the same by civil action, in the name of the corporation, before any court of competent jurisdiction.” It is unnecessary to inquire nicely as to the means for enforcing the collection which the town could employ under the general power granted to it “ to levy and collect taxes,” because the provision for the collection by means of a civil action having been made, other modes of enforcing the payment of taxes are thereby excluded and forbidden.

This determines the most important point in the case, in favor of the judgment of the lower court; but that court, in some minor matters, so erred as to make it necessary to reverse its judgment. The court, by striking out an answer filed by the defendant and by instructions given at the trial, in effect decided that the measure of the plaintiff’s damages was the value of the negro with interest, deducting therefrom the money repaid to the plaintiff, but without deducting the amount of the taxes retained by the defendant.

1. Assuming that the value of the negro, with proper deductions from that value, is the correct measure of the plaintiff’s damages, yet the amount of the taxes should have formed a part of the deduction. As a mere trespasser, A. has no right to take the property of B. and apply it to the payment of B.’s debt, and in a suit by B. against A., that application of it would not mitigate the damages which B. could recover; but the authorities seem to make an exception in the case of an officer, who commits a trespass by an honest mistake and in the discharge of what he believed to be his duty, and to mitigate the damages by the amount of the tax or debt of the plaintiff which was paid by the defendant.

2. The second instruction given states too absolutely, that the measure of damages is the value of the negro, with interest (subject to deductions). The case as shown in the record has several aspects, and whilst in some of them the value (with deductions) is the measure of damages, in at *342least one other it is not; that is, if the plaintiff were himSelf the purchaser of the negro, through the agency of Hunt, then the value of the negro is not the measure, but the price bid at the sale is (with deductions); and the instruction was so worded as to fail to give the defendant the full benefit of'a consideration of this aspect of the case.

My .individual opinion is, that there was also another aspect of the case in which the value was not the measure of damages; that is, if the plaintiff after the sale had the possession of the negro, and knowing as he did, that Hunt had no title to the negro, voluntarily and unnecessarily bought the negro from Hunt, he cannot be said to have lost the negro (or the price paid Hunt for the negro) ; and if the negro was not lost to him, of course the measure of damages is not the valne. He may be entitled to full compensation for all the injury which he has sustained by the acts of the defendant, but not for the injury sustained by means of his own voluntary acts.

In the answer (which was stricken out) there were some immaterial averments which might have been stricken out, but there were other matters also which were properly plead-able in mitigation of damages.

With the concurrence of Judges Bay and Dryden,

the judgment is reversed and the cause remanded.