Donnell v. Jones

17 Ala. 689 | Ala. | 1850

CHILTON, J.

The principal points which arise in this case, we conceive are fully settled by the previous decision of it to be found in 13 Ala. 490. We there attempted to show the distinction between general and special damage, and to point out the damage which, under the declaration in this case, constituted the particular subject of inquiry and compensation. We there held that it was competent for the plaintiffs to prove the general loss of their mercantile credit, the stoppage of their joint business, and the prevention of their sales. These we considered and still regard the natural and proximate results of the acts complained of, and they are avered .in the declaration in aggravation of the damage, consequent upon the wrongful and vexatious suing out of the attachment, upon the ground that the plaintiffs below were about fraudulently disposing of theirproperty, and the levy and seizure of their goods. Guided by the principles then laid down, it is perfectly clear that the Circuit Court properly permitted the plaintiffs below to prove the issuance of the attachment, the levy made under it upon the goods of the firm, and the subsequent disposition of the levy, as is shown in the written statement as to what the witnesses Hughes and Brame would prove, which by consent of the respective counsel was substituted in lieu of their examination in court. This proof conforms to the allegations of the declaration, and tends to prove the actual damage the plaintiffs sustained.

The plaintiffs allege that by reason of the wrongful issuance of the attachment and seizure of their gobds they were forced to give up their business as merchants in the city of Montgomery, and that this, with the loss of their credit and the expense of defending against the attachment, has injured them to the amount of twenty thousand dollars. How shall the jury arrive at a knowledge of their actual loss? What have they lost as a conquence of the seizure of their goods and stoppage of their business. The answer plainly is the nett profit which they would have made upon their goods but for the wrongful act of the .■ plaintiff in error. But it is insisted by the counsel for the plaintiff in error, that the loss of profits is not the subject of compensation, and we are referred to Sedgwick on Damages, p. 78, who says, “that both the English and American courts have generally adhered to this denial of profits as any part of the damages to be compensated, and that whether in cases of contract or of tort.” The author cites 1 Gall. Rep. 314; 1 How. U. S. Rep. 28. In the first, Judge Story rejected the item of profits on a voyage in an action for an illegal capture, and in the latter, the Supreme Court of the United States, per Taney, C. J. held, in a case of collision between two vessels, that the owner of the injured vessel could not recover for profits on the voyage broken up by the accident. These cases are predicated upon the doctrine which obtains in cases of insurance, which is, that the insured cannot recover for the loss of probable profits at the port of destination, arid that the value of the goods at the place of shipment constitutes the true criterion of damáges. Without venturing to question the correctness of these decisions, we think tlie principle settled by them does not apply to the facts of the cáse before ris. Here; unless the plaintiffs can be allowed to show the character of the business in which they were engaged, and the ordinary profits accruing upon such business, what aid shall the jury have in estimating the damage they have sustained? /Now we would by no mearis say the jury should make the supposed profits, which they had lost, the measure of damages. All we design to affirm is that proof, tending to establish such loss as a consequence of the levy of the attachment, may properly go before the jury to serve as some guide for them, in the- exercise ^of their discretion, in estimating the loss. The cases cited by Mr. Sedgwick, p. 90, et seq. we think, sustain this view. In White v. Moseley, 8 Pick. R. 356, which was an action of trespass for breaking down a mill dam, the diminution of the plaintiff’s profits on account of the interruption of the mill was allowed to be recovered. A similar principle was ruled by the Supreme Court of Vermont in Clifford v. Richardson, 18 Ver. R. 620. The court say, “the loss of the use of the mill whether wholly or partially &c, are within the direct allegation of damage and injury contained in the count, and cannot be regarded as a remote or collateral damage for which there is no remedy.” In Tarleton v. McCawley, Peake, Ñ. P. Cases 205, Lord Kenyon even went so far as to hold that an action lay for firing on the negroes on the coast of Africa, thereby deterring them from trading with the plaintiff, whereby he lost the profits of their trade; and this case is cited with approbation by Mr. Sedgwick, p. 90, who says, it may well be doubted whether the language of some of the American cases has not pushed the rule beyond ■ the true line. The case of Ingram v. Lawson, 6 Bing. N. C. 212, cited by Mr. Sedgwick, p. 91, fully sustains the view we have taken. That was' an action against' the editor of the Times, for having published a libel, stating that a certain vessel, of which the plaintiff was master and owner, was not seawoitby &e. The jury were instructed that with a view to estimating the damages, they might look to the nature of his business and his general rate of profit. This was held to be correct. Coltmáh, J, said “with respect to the damages, thejury must have some mode of estimating them, and they would not be in a condition to do so, unless they knew something of the plaintiff’s business, and the general return from his voyages.” The evidence, says Mr. Sedgwick, was admitted not as a measure of damages but as a guide for the jury in exercising their discretion. — see, also, 23 Wend. 425; 9 ib, 325; 18 Pick. R. 78; 17 Wend. 71. When this case was previously before us, we said that injury to the joint credit of the plaintiffs, injury to their goods, the stoppage of their business, and the prevention of their sales, were proper subjects of inquiry for thejury, and constituted legitimate sources of damage___ 13 Ala. 509. Under that decision, and the cases above referred to, we think the proof of Phillips and Bell was properly received, notas affording a measure of damage, but as furnishing to the jury, who must in the absence of all proof of the kind remain in utter darkness as to the damage sustained, some light on the subject, guiding them at least to some extent in forming a correct idea of the injury sustained. The position that such proof tends to establish injury, not specified in the declaration, cannot be sustained. This was settled by us in the former decision, and we are, upon a re-examination of the case, better than ever convinced of the correctness of that opinion.

In regard to the bill of exceptions, and what is shown by it, we have but to say that we have time and again held, the party complaiuing of error must affirmatively show it; that when we áre called upon to construe a doubtful bill of exceptions, that construction will be adopted which is most favorable to the regularity of the judgment; in other words, when intendments are to be made, they will be against the party excepting, and in favor of the judgment. This being too well settled to be controverted, we are bound to consider those charges stated in the bill of exceptions, and which do not appear to, have been refused, as given by the court. The court also had the right, either on the motion of the counsel or mere motu, to correct or modify a charge which he had given to the jury, and it would be highly mischievous in its consequences, if such right did not exist. It cannot be tolerated that a casual or unguarded expression falling from the court, and which upon a moment’s reflection the court sees is wrong, and corrects before the jury, should operate a reversal of the cause. We must intend that the jury were not influenced by the erroneous charge which the court afterwards tells them in plain and direct terms to disregard. We think also, that the actual injury done the goods of the plaintiff by the levy upon and seizure of them, may well be recovered under this declaration.

We have fully considered the other points raised in the argument of this case, but as they are, in our opinion, concluded by what we have said in this, and the previous opinion, pronounced in this cause, we should be but repeating what we have before said to notice them particularly in this place.

As to the effect of the assignment made by R. Jones & Co., three days after the issuance of the attachment, the court very properly held that even its fraudulent execution could not justify the suing out of the attachment three days previous to its execution, unless the intent existed at the time the attachment was sued out. Clearly, if at the time the attachment was sued out, no good cause existed for a resort to such extraordinary process, the isssuance of it was wrongful. If a ground for an attachment is shown to exist a few days after its issuance, this may afford some evidence that the party contemplated it at the time, but this is not the effect of the charge asked upon the subject.

Upon a careful review of the whole case, we feel satisfied that, there is no error in the record, prejudicial to the plaintiff in error, and that the charges given were as favorable, and some of them perhaps more so, to the plaintiff in error, than the law would justify. Let the judgment be affirmed.