16 Colo. 504 | Colo. | 1891
delivered the opinion of the court.
There is very little controversy as to the facts of this case. Under the assignment of errors the principal question to be determined is whether or not the finding of the trial court was warranted by the law under the evidence submitted.
In seizing and selling property upon execution the sheriff does not act as an agent selected by the execution debtor. As to the debtor the proceeding is adverse; it is ininvitum. The sheriff derives his authority directly from the law by virtue of the process in his hands, and not from the owner
The goods consisted of a large stock of merchandise, such as boots, shoes, clothing, gentlemen’s furnishing goods, et cetera. It nowhere appears in the testimony whether the “dozens” which the officer claims were erroneously advertised were common muslin neckties, worth twenty-five cents a dozen, or expensive boots and shoes, worth fifty or a hundred dollars per dozen pairs, or other articles more or less expensive.
notwithstanding the officer knew of this alleged discrepancy, he proceeded to sell the goods in bulk, making, as he testified, public announcement in a loud tone, so that all
With the exception of the fixtures, the goods were all sold in bulk for the gross sum of $8,000. Several responsible parties made bids, one bidding $7,850, another $7,900.
It was unquestionably very negligent for the officer to sell a large amount of miscellaneous merchandise upon an advertised list which he knew was defective, without ascertaining and making known to the bidders the extent of the discrepancy. Agreeing to make a rebate in proportion to the shortage did not excuse the negligence. Such agreement could not be carried out with any reasonable degree of accuracy.! Hor was it reasonable to expect that such an arrangement could be consummated without trouble and conflict between the purchaser and the officer, if the officer should attempt to be faithful to his trust. If the merchandise had been sold at retail, or in lots consisting of a number of articles of the Same class and value, the difficulty of adjusting the rebate would not have béen so great. But the sale being in bulk of a large quantity of miscellaneous goods, who could say with any degree of certainty what was the value of the supposed missing goods as compared Avith the Avalué of the whole quantity advertised ? It would be a mere matter of opinion at best. Different persons might have very different opinions upon the subject. Some of the other bidders may have had opinions very different from those of the purchaser concerning the* rebate to be al
But the manner of making the sale in bulk upon a defective list, with an agreement to make a proportionate rebate for any shortage that might be found, was by no means the most negligent part of the transaction. As soon as the goods were struck off, the under-sheriff, pleading other pressing official engagements, asked and received from the purchaser a certificate of deposit for $2,500 and a check for $5,500 in payment of the goods, and thereupon delivered possession of them and went away, leaving no officer to attend to the delivery and checking of the goods to the purchaser. A few horn's later the purchaser, claiming that there was a shortage in the goods and that the shortage was of the value of $537, stopped payment on the $5,500 check, and demanded that the $537 be immediately repaid to him. The purchaser, as he hiniself testified, took no inventory of the goods as delivered; nor did he make any list of the goods claimed by him to be missing. In making his claim for a rebate he exhibited no list of the supposed missing articles; nor did he ever make any statement to the under-sheriff or to any other officer or person concerning the kind, class or quantity of the alleged missing goods; he simply asserted that the shortage amounted to $537; and upon this bald, naked, uncorroborated claim the under-sheriff, without protest, and without attempting to ascertain the truth in respect to the alleged shortage, repaid the full amount claimed by the purchaser. He did this for the reason, as shown by the evidence, that he could not otherwise get a settlement. The proprietor of the auction house testified without contradiction that' the under-sheriff told him that he “ couldn’t make a settlement, that we had got to make a rebate.” It certainly was the officer’s own fault that he was in the power of the purchaser in respect to the settlement for the alleged shortage.
In this connection it is significant that not even upon the trial was any evidence produced showing the quantity, kind, class or description of the goods claimed, by the purchaser
The under-sheriff seems to have yielded every matter connected with the adjustment of the supposed shortage to the absolute dictation -of the purchaser — the adverse party in interest. No precaution whatever was taken for the .protection of the sheriff or any other party interested in the property. Almost as well might the officer have delivered the goods to the purchaser in the first instance, saying, £: Pay me what you think they are worth,” as to have made and carried out the arrangement for the sale of the prop.erty as he did.
Appellant cannot be heard to plead that he did not actually receive the full price at which the goods were struck off. In sales upon execution it is the duty of the sheriff to sell to the highest bidder for cash only. He is not at liberty to make a conditional sale or a sale on credit upon his own responsibility. As between the sheriff and Oppenstein, the latter is entitled to treat the acceptance of the certificate of deposit and the check as a cash payment to the sheriff of the full amount for which the goods were sold, in view of the fact that he voluntarily made a complete delivery of the goods upon receipt of such payment. As was said by the supreme court of New Jersey in a recent case: “ If he (the sheriff) give an unauthorized credit to purchasers, and deliver possession to them of goods sold at judicial sales, he will not be permitted to elect what remedies shall be pursued against him.” Murfree on Sheriffs, sec. 993; Draper v. State, for use, etc., 1 Head (Tenn.), 262; Disston v. Strauch, 42 N. J. Law, 546; Binmore on Sheriffs, sec. 188 ; Swope v. Ardery, 5 Porter (Ind.), 213.
Under the circumstances the repayment of the $53Y by the sheriff cannot, in any proper view of the law, be justified as a reasonable expenditure connected with the seizure and sale of the property. Since the sheriff at the trial failed to produce evidence of any proper criterion by which to determine how much, if anything, should be allowed in respect to the alleged missing goods, nothing can be justly allowed. In making claim for such allowance the sheriff starts with the confession of his own negligence in knowingly making the sale upon an erroneous advertisement of his own publishing. Hence, it certainly was incumbent
One further assignment of error requires consideration. The amended complaint upon which this cause was tried contained three separate statements of the same cause of action. The code, section 49, provides that there shall be no “ unnecessary repetition ” of the ,c facts constituting the cause of action.” Duplicate statements for the same cause of action are not absolutely prohibited. They may sometimes be necessary and therefore permissible, as where there is reasonable cause to believe that the plaintiff cannot safely go to trial upon ’a single statement. There may be circumstances under which the plaintiff cannot reasonably he expected to anticipate the evidence in advance of the trial. But we need not test the ruling of the trial court by these principles. The defendant’s motion was to strike out the first and second causes of action. If the motion had been to require plaintiff to elect which cause or causes of action he would rely on, and that the residue be struck out, the motion might have prevailed in whole or in part. As the motion was framed it was not error to deny it. Bliss on Code Pleadings, sec. 119; Jones v. Palmer, 1 Abb. Pr. Rep. 442; Whitney v. Railway Co., 27 Wis. 327.
The judgment of the superior court is affirmed.
Affirmed.