Bristol Manufacturing Co. v. Gridley

27 Conn. 221 | Conn. | 1858

Hinman, J.

This was an action upon the case for fraudulently altering the assessment list of the town where the plaintiffs’ corporation was established, after it was perfected and lodged with the town clerk. The alteration consisted in increasing the amount of the valuation of the plaintiffs’ property, to such an extent that their tax was increased about forty dollars beyond what it would have amounted to by the actual assessment as it was perfected and returned to the town clerk’s office; and the plaintiffs were compelled to pay the increased tax, in order to save their property, which was levied upon by the collector, from being sold at the post under the collector’s tax warrant.

The declaration alleges the alteration to have been made maliciously, falsely and fraudulently, and without color of right; and the superior court was of opinion that, although the alteration was illegally and improperly made, without color of right, the allegation that it was maliciously made was a material one, which must be proved to the satisfaction of the jury in order to justify a verdict for the plaintiffs. The jury were therefore told that they must find actual malice in order to justify such a verdict, and it is obvious that by this expression, “actual malice,” the jury must have understood that something more was meant than the intentional and unauthorized and unlawful alteration of the list to the injury of the plaintiffs, because they were told that, although the act was unlawful and improper, it did not necessarily follow from it that malice was to be inferred, and that malice was not to be implied from every, unlawful act.

It is true, undoubtedly, that if the list had been altered by the assessors before their powers over it had ceased by its completion and return to the town clerk’s office as a perfected list, they could not be made liable for any erroneous valuation of the property of a tax-payer, unless they were guilty of maliciously doing it from some such unworthy motive as is imputed to the defendant in this declaration. The case of the surveyor of highways, who acted from an incorrect view of his duty, would undoubtedly apply to such a case. Pater v. Baker, 3 Mann., Grang. & Scott, 831. But after the list was perfected and returned to the clerk’s office, the persons who, as assessors, had perfected and returned it, had no more power over it than any stranger. And we think it is all they can claim, if the fact that they had, as assessors, made the list which they afterwards assumed to alter, is suffered to be shown in mitigation of damages. We think, therefore, that the action can not be treated as one against an officer, for something done or omitted under color or in discharge of his office, and the eases cited by the defendant relating to such a state of facts have consequently no application to it. Nor is it an action for a malicious prosecution, or a malicious use of legal process. Nor is it in the nature of any such action, or of an action of slander, under circumstances which are prima facie a justification of the words. We view it, rather, as an action for consequential damages, arising from the unlawful alteration of a document, in the security and correctness of which the plaintiffs and all the other tax-payers of the town had a private interest. Now, had it been a private document, as a deed of real estate to the plaintiffs and others, lodged with the town clerk for record, and the defendant, or even any of the grantees, had taken it away or destroyed it, the case of Hine v. Robbins, 8 Conn., 342, shows that the interest which each of the grantees has in it, and in the record of it, is sufficient to enable him to sustain an action. Yet in the case referred to the plaintiff was deprived of nothing except his right to have his deed recorded. This embarrassed his title, and was a violation of his rights, and therefore entitled him to damages. We do not see why the destruction of the true and only authentic valuation of a tax-payer’s property, and the substitution for it of a false and greatly increased valuation, which is directly calculated to cause an unjust tax to be imposed upon him, and to be collected under the form of a lawful tax, is not as substantial an injury as the withdrawal of a deed from the clerk’s office before it is recorded. And if this is a document in the correctness of which the plaintiffs have a direct interest, then the alteration of it would seem to be a direct violation of their rights for which they may sustain an action; and such a violation of rights we think a sufficient ground of action, irrespective of the motive under which it was done.

It is said that if malice is not a material allegation the action is misconceived. We do not see what other action the ■ plaintiffs could sustain against this defendant. He did not. direct the collector to levy his warrant upon the plaintiffs’ property, so as to make him liable in trespass; and had he done so, we do not see that his malicious motives would have made him any less a trespasser, so as to justify the present action. The warrant, being legal upon the face of it, was a justification to the officer, and although the money collected under it might be recovered back from the town, still this might not be as complete a remedy for the invasion of the plaintiffs’ rights as the circumstances called for. And if the present action can not be maintained without proving malice, and an action of trespass will not lie, then the defendant may be guilty of an acknowledged wrong, injurious to the plaintiffs’ interests, without any liability therefor. This has not been directly claimed, and, we presume, because it was notthought by counsel that it could properly be.

On the ground, therefore, that the court was wrong in considering the allegation of malice as a material part of the declaration, and necessary to be proved, and so charging the jury, we advise that a new trial be granted.

In this opinion Ellsworth, J. concurred.

Storrs, C. J., while agreeing with the other judges as to the incorrectness of the charge, yet thought that on the facts admitted the action could not be sustained, and that a new trial would therefore be of no benefit to the plaintiffs. He also thought that the plaintiffs themselves, in their request to the court, had taken the ground that malice was to be found by the jury, and ought not therefore to object to the charge. For these reasons he did not concur in advising a new trial.

New trial advised.