Collins v. Lowry

78 Wis. 329 | Wis. | 1890

Cassoday, J.

The principal contention is as to whether the plaintiff, after having at the commencement of the second trial in open court received and accepted tbe stock certificate previously tendered to tbe plaintiff in writing and deposited and filed by tbe defendant witb tbe clerk of tbe court, could also recover actual damages for bis time, trouble, and expenses incurred in tbe bringing of tbis action and obtaining tbe return of tbe stock. Tbe learned counsel for tbe plaintiff contends that be was entitled to sucb recovery, and be requested an instruction to that effect, and also an instruction to tbe effect that tbe plaintiff was entitled to, as damages, $514 incurred for counsel fees up to tbe time of tbe last trial, and $500 for tbe plaintiff’s time and trouble in tbe premises, and sucb further sum as, in tbe opinion of tbe jury, would compensate tbe plaintiff for tbe expenses of tbe trial and expenses incident thereto. These instructions were refused, and tbe jury, under the directions of tbe court, returned a verdict for nominal damages only.

Tbis is not an action to recover specific personal property and damages for tbe withholding of tbe same. If it were, tbe plaintiff probably might take back the property and then recover all damages for sucb withholding. But tbis is, in effect, tbe old action of trover; that is to say, an action to recover tbe value of tbe stock so wrongfully converted. The theory of tbe case is that tbe defendant is only answerable for tbe value of tbe property, and that be or bis vendee or transferee is to be regarded as tbe owner. Sucb being tbe nature of tbe action, a verdict for tbe value of tbe property converted necessarily covers and includes tbe damages for sucb conversion, and tbe acceptance by tbe plaintiff of tbe thing converted necessarily covers and includes its value, and hence sucb acceptance extinguishes tbe alleged cause of action for sucb value; in other words, tbe plaintiff, pending sucb an action, cannot waive tbe alleged tortious conversion by taking back tbe property, and at tbe same time continue the action and recover tbe full or partial value of'the thing converted, nor even to recover costs. Thus in Geiser T. M. Co. v. Smith, 36 Wis. 295, it was beld that, “upon issue joined in an action sounding in damages, the plaintiff cannot recover costs without damages. Where, after commencing an action upon a note, the plaintiff accepted payment of the amount due on the note, this extinguished his right of action, and it was error to render judgment in his favor for the costs of the suit.” This was expressly approved and the principle fully discussed by Mr. Justice OetoN in the recent case of Two Rivers Mfg. Co. v. Beyer, 74 Wis. 221. It 'follows that there was no error in directing a verdict as indicated, and in refusing to instruct as requested.

To entitle the plaintiff to costs in such an action it was necessary for him to recover at least $50 damages. Subd. 5, sec. 2918, E. S. Since the plaintiff was not entitled to costs, it follows that the defendant was. Sec. 2920, E. S. “ The defendant may, in any action, at any time before the trial, serve upon the plaintiff an offer in writing to allow judg' ment to be taken against him for the sum or property or to the effect therein specified, with costs.” Sec. 2789, E. S. The defendant served such offer in writing February 12, 1889. If the plaintiff desired to accept such offer, he was required by the section of the statutes last cited to give notice thereof in writing within the time specified. Ibid. The plaintiff not only failed to give notice of such acceptance, but served and filed a written notice expressly declining to accept such, offer and tender. The section of the statutes cited also expressly provides that “ if notice of acceptance be not given, the offer is deemed to be withdrawn and cannot be given as evidence nor mentioned on the trial; and if the plaintiff failed to obtain a more favorable judgment he cannot recover costs, but must pay defendant’s costs from the time of the offer” Ibid,. Since the plaintiff declined to accept the defendant’s offer, the same must be regarded under the statute as withdrawn. Auley v. Oster-man, 65 Wis. 127. Since the plaintiff failed to obtain a more favorable judgment than was thus tendered, be was manifestly precluded by this provision of the statute from recovering any costs. It is true that the statute only authorized the taxation of such costs in favor of the defendant as accrued subsequently to the time of such offer, but there is nothing in the record indicating that any costs or disbursements that accrued prior to such offer were taxed in favor of the defendant. Such being the condition of the record, there is no reversible error by reason of any improper allowance of costs or disbursements.

By the Qowrt.— The judgment of the circuit court is affirmed.