47 Wis. 39 | Wis. | 1879
The evidence upon the trial was conflicting; and if the number of witnesses was conclusive as to the weight of the evidence, certainly the weight of the evidence was in favor of the theory of the defense, that the notes were to remain in the hands of the defendant, not, as set out in the answer, until the debts of the firm of Ohurchill & Co. were paid, but until the notes themselves were paid.
The plaintiff denies the alleged partnership, and denies that he agreed that either the firm debts or other debts owing by Hartford should be paid before the notes were paid. lie claimed that he wanted the notes placed in the bank for collection, but that the defendant insisted they would be equally safe in his hands, and that he finally left them with him; that when the first became due, he called on defendant, and defendant said it had not been paid, and that there were other debts to be paid; that he afterwards' called on the defendant and inquired where the notes were, and that Welsh abused him and ordered him off his premises. Soon after, and before the commencement of this action, he demanded the notes of the defendant, and the latter refused to give them up.
The evidence also shows that when the plaintiff demanded the notes of the defendant, he replied that he would give them up if both parties agreed to it, but he could not give them up unless both parties should agree thereto.
Notwithstanding the number of witnesses was in favor of the defendant, the jury found for the plaintiff; and this court cannot reverse the judgment, though we might be inclined to think the weight of evidence was in favor of the defendant.
"We have noticed this subject of evidence, as bearing upon the question of the good faith of the defendant in refusing to surrender the notes when demanded, which is a matter of great importance in determining the question of the right of the defendant to surrender the notes after suit brought, in mitigation of damages.
As we have concluded that the circuit judge erred in not granting the motion of the defendant to reduce the verdict to merely nominal damages upon the offer of the defendant to surrender the notes to the plaintiff, it will be unnecessary to pass upon the other questions discussed upon the argument of this appeal.
It has been a well established rule in the courts of England for more than a century, that in actions of trover the court will, under certain circumstances, permit the defendant, after
This rule has been followed in Vermont to its full extent as practiced in the English courts, and has been recognized as a proper exercise of the power of the court in special cases in the courts of Maine, New York, Massachusetts, and other states. The cases in which this rule has been acted upon by the courts, are mostly cases for the conversion of bills, notes, bonds, and other contracts for the payment of money.
The rule was, perhaps, first definitely defined by the court of King’s Bench, in 1762, in the case of Fisher v. Prince, 3 Burrow, 1364. In that case, Lord Mansfield and Justice Wilmot concurred in the following rule: “ That where trover is brought for a specific chattel of an ascertained quantity and quality, and unattended with any circumstance that can enhance the damages above the real value, but that its real and ascertained value must be the sole measure of damages, then the specific thing demanded may be brought into court.” (Justice Wilmot said “this was the more reasonable, as this action of trover comes in the place of the old action of det-inue.”) “ Where there is an uncertainty either as to the quantity or quality of the thing demanded, or that there is any tort accompanying it, that may enhance the damages above the real value of the thing demanded, and there is no rule whereby to estimate the additional value, then it shall not be brought in. . . It ought to he done; because at the trial, when the thing remains in the same condition, there generally is a rule ‘ to deliver it.’ An estimated value is a
Previous to this, the decisions of the courts had not been uniform, as will be seen by a reference to the cases of Harding v. Wilkin, Sayer’s Reports, 120, 27 Geo. II., 1754; and Calting v. Bowling, East, 26 Geo. II.; Salk., 597. Since the decision in the case of Fisher v. Prince, the practice has been uniform in the English courts. The reasons for the rule, and the considerations which should govern courts in its application, are very briefly but most clearly stated by the learned chief justice in that case. Pickering v. Truste, 7 Term, 53; Brinsden v. Austin, Tidd’s Pr., 571; Tucker v. Wright, 3 Bing., 601; Earle v. Holderness, 4 Bing., 462; West v. Taunton, 6 Bing., 404-408; Whitten v. Fuller, 2 W. Bl., 902; Cooke v. Holgate, Barnes, 281; Royden v. Batty, id., 284; Moon v. Raphael, L. J., N. S., C. P., vol. 5, p. 46; Gibson v. Humphrey, 1 Crompt. & Mees., 544; Loosemore v. Radford, 9 M. & Weis., 657, 659; Alsager v. Close, 10 M. & Weis., 576-584; Cook v. Hartle, 34 E. C. L., 528; Buller’s Nisi Prius, 49 a, and notes. These cases show under what circumstances the rule established in Fisher v. Primee should be applied.
In the case of R. R. Co. v. Bank of Middlebury, 32 Vt., 639, which was an action of trover to recover for the conversion of certain railroad bonds, the court held, after a full discussion of the English authorities, that the rule of the English courts upon this subject was a just rule; and the defendant was permitted to bring the bonds into court, and, in the absence of any evidence showing any special damage beyond the value of the bonds, the court directed a verdict for the plaintiff for nominal damages.
In Hart v. Skinner, 16 Vt., 138, the rule was also discussed and recognized, but the right of the defendant to bring the property into court in that case was denied, because the defendant did not bring his case within the rule.
In Tracey v. Good, 1 Clark (Pa.), 472, the court recognized the English rule, but refused to permit the return of the property under the facts of the case. The four cases last cited are the only ones we have been able to find, in which the English authorities upon this question have been considered and acted upon by the courts of this country; but that such right exists in proper cases, is recognized in the following cases: Shotwell v. Wendover, 1 Johns. R., 65; Stevens v. Low, 2 Hill, 132-134; Thayer v. Manley, 8 Hun, 550. The last case was an action by the maker of three promissory notes, to recover damages against the payee for obtaining said notes by fraudulent representations; and it was held that if the defendant returned the notes or destroyed them before the judgment, the plaintiff would only be entitled to judgment for nominal damages. See also Sedgwick on Damages (6th ed.), 614, and note; 2 Wheat-on’s Selw., 546.
This question was discussed by counsel in the case of Wheeler v. Pereles, 43 Wis., 332-340, but was not passed upon by the court. The case of R. R. Co. v. Bank of Middlebury, above cited, was referred to in the opinion of the court, with the remark that it was “ not in point, and that nothing had been done there by the pledgee affecting the validity of the bonds pledged, and it might have been a proper exercise of power to permit the return of the bonds in mitigation of damages.”
The question is an open one in this court; and we are disposed to adopt the rule of the English and Yermont courts, in a case like the one at bar, where the defendant holds the
"We are also unable to perceive that the plaintiff suffered any special damage by the refusal of the defendant to deliver the notes on his demand. If any of the notes were due and payable to the plaintiff, and he desired to enforce the payment of them, the fact that they were in possession of the defendant, he not claiming any interest in them, could not hinder the plaintiff from proceeding to enforce their collection, either by action or upon the chattel mortgage.
We think great injustice will be done to the defendant if this judgment is permitted to stand. If any faith or credit is
The facts in this case, we think, present a much stronger case in favor of the defendant than the facts in the case of R. R. Co. v. Bank of Middlebury, above cited. In that case it was claimed by the plaintiffs, and so the jury found upon the trial, that the bonds held by the defendants were placed in their hands by the plaintiffs under the following circumstances: The plaintiffs were indebted to the defendants for two drafts of $5,000 each, which were past due, and the defendants had commenced suit on the same. The plaintiffs applied to the defendants to discontinue, and renew the discount, and proposed to substitute new drafts for the old, and deposit with the defendants the bonds in question to hold as collateral security for such new drafts. The bonds were delivered to the defendants by the plaintiffs upon this understanding on the part of the plaintiffs; the new drafts were also sent to them, but the defendants refused to take the new drafts or surrender the old ones, and also refused to discontinue the suits upon the old drafts. The plaintiffs demanded a return of the bonds; the defendants refused to surrender the same; and thereupon the plaintiffs brought action against the defendants for a conversion of the bonds. To the plaintiffs’ complaint the defendants at first pleaded the general issue,
The excuse given by the defendants on the trial for not surrendering the bonds upon the demand of the plaintiffs, was, that they supposed the bonds were deposited with them as collateral security for their claims against the plaintiffs then overdue. And upon the trial they gave evidence tending to show
HTn the case at bar, the defendant, who seeks to surrender the notes sued for, makes no personal claim of interest in the same; he confessedly holds them as custodian, without claim of title except to the possession. He claims and shows that the parties who placed them in his hands, disagi-ee as to the purposes for which they were placed in his custody. When they are demanded of him by the plaintiff, he offers to surrender them if the parties who placed them in his hands will agree to whom they shall be surrendered. Upon being sued for their conversion, he promptly brings them into court, alleges that the conflicting claims of the parties render him unable to comply with the demand of the plaintiff, offers to put them into the custody of the court, and asks the court to make the other party in interest a party to the action, and that he be discharged from further litigation in the matter. When this is denied, no unreasonable delay is asked by the defendant, but the action is promptly brought to trial; when the jury have decided that he was mistaken as to the purposes for which they were placed in his hands, he immediately asks that he may be permitted to surrender them to the plaintiff in mitigation of damages. Upon the trial, he gives abundant evidence showing that the claim he made for not delivering the notes to the plaintiff was made in good faith.
If any defendant who is sued for a conversion of personal property, can be allowed to surrender the property after action brought, this defendant ought to be permitted to do so. As there is no claim made in the plaintiff’s complaint that he has suffered any special damages by reason of defendant’s refusal
It is probable that the defendant did not bring his case, by his answer, within the letter of that part of sec. 22, ch. 122, E. S. 1858, now sec. 2610, E. S. 1878, which provides that “ a defendant against whom an action is pending upon contract, or for specific real or personal property, may, at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its face value to such person as the court may direct; and the court may, in its discretion, make the order.” But he certainly brought the case within the spirit of the statute; and, had the plaintiff brought an action of replevin for the notes, instead of trover to recover their value, we are inclined to think the court would have been justified in granting his application to be discharged from the action on delivering the notes into court, and in substituting Hartford as the defendant in his stead. See Schuyler v. Hargous, 3 Robt., 673; McKay v. Draper, 27 N. Y., 256.
But whether or not, upon the facts proved in this action, the defendant could have successfully sustained an action in the nature of a bill of interpleader against the plaintiff and Hartford, or whether he was entitled to any relief under the section of the statute above quoted, such facts, in our opinion, bring him within the spirit of both the relief provided by the statute and that furnished in an action of interpleader, and put him, therefore, in the strongest position for demanding of the court the relief he now asks for. His case presents the strongest equity for the application of the rule of the courts of England and of this country, above cited, which permits the return of the property in actions of trover, after suit brought, in mitigation of damages.
It is urged that if this rule is to be adopted at all, it must be discretionary with the court in which the action is tried, and, if that court refuses to allow the defendant to return the property in mitigation of damages, or to make any order upon the subject, this court cannot review and reverse the action of such court in a matter resting in its discretion. ^
Ordinarily this court will not reverse the action of the court below upon subjects which rest in its discretion. This court has, however, frequently held that the courts, in passing upon matters resting in discretion, must exercise a legal discretion, and if that discretion is abused, or if the court pro
We are of the opinion that the power to grant the relief asked for by the defendant in this case is a power which the courts ought to exercise in proper cases for the promotion of justice and the prevention of harsh and unjust judgments, especially against parties standing in the position of mere custodians making no claim to any interest in the property, except to hold the same for the parties interested, and who, by reason of adverse claims made by such parties, decline to deliver to one of the parties upon demand, when in good faith such declination is based upon a belief that they have no right to make such delivery, and when it does not appear that any injury has been done to the demandant by such refusal, which will not be compensated by a return of the property. The establishment of this rule will be in harmony with the provisions of sec. 2610, E. S. 1878, above cited, with the long established jurisdiction of courts of equity in allowing bills of interpleader, and with the law of this state which authorizes the defendant, in cases of involuntary trespasses, to make a tender of damages before suit, the refusal of which puts the plaintiff in peril of the payment of costs, if in the end he does not recover greater damages than the amount tendered.
For these reasons we hold that the learned circuit judge should have granted the motion of the defendant, and that his
By the Court.- — -The judgment of the circuit court is reversed, and the cause remanded with direction to grant the motion of the defendant to reduce the verdict to nominal damages upon his surrendering the notes to the plaintiff, and to enter judgment for the plaintiff for such nominal damages and the costs of the action.