127 Iowa 153 | Iowa | 1905
In this action the plaintiff demands damages to credit alleged to have been caused by the malicious prosecution of attachment proceedings in Cook county, Ill. It appears that the Dorr Cattle Company, incorporated in this State in 1891, had acquired 1,030- acres of land in Calhoun • county, and was extensively engaged in handling and feeding cattle for the Chicago market. Large amounts of money were required in carrying on the enterprise, and it became indebted to the Des Moines National Bank for over $37,000. Of -this about $30,000 was secured by a mortgage on the land, upon part of which there was a prior mortgage of $5,000. The remaining $7,000, in two notes, was unsecured. All of the indebtedness was overdue, and as early as August, 1899, Reynolds, the president of the D'es Moines National Bank, had advised J. W. Dorr, the secretary and manager of the company, that the entire indebtedness must be paid within a short time. It seems to have been understood that the company’s only resource for this purpose was the land, and Dorr made some effort to dispose of it, but without success. Negotiations were then begun with the view of satisfying the debt by a transfer of land to the bank. These continued until December 22d, and in the morning of December 28, 1899, the bank began suit in Cook county on one of the notes, amounting to $6,557, and caused Clay, Robinson & Co., of Chicago, to whom, as consignee, the company had shipped eight car loads of cattle the night previous, to
But appellant insists that even under Dorr’s testimony the deed was placed in Watt’s hands to be delivered to the bank on the condition that it first pay him the difference between the price of the land and the debt of the company. Doubtless the jury might have so found, but the court instructed that there could be no recovery unless Dorr “ gave such deed to Watt, and it was delivered accompanied with such words or acts as to show an intention on the part of Dorr to surrender dominion over the deed, and that the same should be by said Watt turned over to the defendant upon its request.” Under this charge the jury must have concluded that the deed was delivered to Watt for the bank unconditionally. The testimony of Dorr was open to this construction, and this -was not necessarily obviated by the
While the issuance of an attachment may do injury to the mercantile character and credit of a debtor, it is, in that respect, not different from other judicial proceedings. If the allegations' of the affidavit are in the one case libelous, and tend to break down, the confidence theretofore. reposed in the defendant, they are no more so than would be a complaint in a siiit for money by alleged false pretenses; And so this kind of injury may be brought about as effectually where no property at all has been taken under the writ. The commencement of an ordinary suit upon a promissory note has full as great a tendency to impair credit as any other proceeding, for the presumption is that a business man will take care of his notes, at least, if he has any regard for his standing in the commercial world; and if he cannot take care of them, so he has to be sued, the inferences must naturally, be that he is weak in resources, and. therefore not a safe person to credit But the note may be forged, or not due, or paid, or there may be counterclaims or good defenses, so that the suit is totally unjustifiable. But does any one sue for damages to credit growing out of such proceedings ? Not at all, because.they are privileged, being proceedings in courts of justice. . And so we think this attachment proceed*160 ing, and all allegations of fraud made therein, although they may injure the character, reputation., or credit of defendant, are in the same way privileged, and not to be recovered for.
A distinction has been attempted, however, by text-writers between actions on the bond and actions on the case, like .this; but the decisions cited by them cannot be said to support the texts. See Lawson’s Bights, Bemedies and Practice, section 3549. Shinn on Attachments, section 379. The only authority cited in the former is Kennedy v. Meacham (C. C) 18 Fed. 312, being the charge of a nisi prius court to the jury. Though an action on the case, the learned judge does not indicate that he thought the rule different in an action on an attachment bond. The same may be said of decisions cited in Shinn on Attachments. See Donnell v. Jones, 13 Ala. 490 (48 Am. Dec. 59); Kauffman v. Armstrong, 74 Tex. 65 (11 S. W. Rep. 1048); Grimes v. Bowerman, 92 Mich. 258 (52 N. W. Rep. 751); Brand v. Hinchman, 68 Mich. 590 (36 N. W. Rep. 664, 13 Am. St. Rep. 362); Bradley v. Borin, 53 Kan. 628 (36 Pac. Rep. 977); Lawrence v. Hagerman, 56 Ill. 68 (8 Am. Rep. 674); MacFarland v. Lehman, 38 La. Ann. 351; Pettit v. Mercer, 8 B. Mon. (Ky.) 51; Meyer v. Fagan, 34 Neb. 184 (51 N. W. Rep. 753). Indeed, the last two cases were on bonds, and all decided in Meyer v. Fagan was that the damages were not excessive. In Bradley v. Borin, supra, the question of injury to credit was not mentioned. It is difficult to understand how the matter of difference in the action, whether on the attachment bond or independent of it, can affect the' remoteness or uncertainty of the damages flowing from the suing out and levy of the writ. In so far as we have discovered, none of the decisions attempt any such distinction, save Lawrence v. Hagerman. There the court remarked that: “ The remedy on the bond would not afford complete indemnity, and would not extend the consequential damages sustained, and hence resort must be had to the common-law action on the case for malicious prosecution. If such an
A similar statement will be found in the third volume of Beale’s Cases on Conflict of Laws, at page 521, in support of which two cases are cited: Meyer v. Estes, 164 Mass. 457 (41 N. E. Rep. 683, 32 L. R. A. 283), and Louisville R. Co. v. Whitlow’s Adm’r, 19 Ky. 1931 (43 S. W. Rep. 711, 41 L. R. A. 614). The former is not in point, as the action was based on a contract to be performed in Massachusetts, the State of the forum. The latter was an action for the wrongful death of a human being in Tennessee, the right to recover for which had been created by the statutes of that State. In Kentucky, where the suit was brought, contributory negligence operates as a complete defense, while in Tennessee it is considered in mitigation of damage only when the defendant’s negligence is the direct and proximate cause. The court held that contributory negligence related to tire right rather than to the remedy, and, therefore, that the contributory negligence of deceased might be considered in the way of reducing the amount of damages to be allowed, rather than to defeat recovery. The opinion lends some support to the text, but is contrary to the doctrine announced by this court in Johnson v. Ry., 91 Iowa, 248, declining to apply the principle of comparative negligence in a case where
There is also some conflict with reference to,the rate of interest to be allowed on a breach of contract, depending largely upon whether the law of the place of performance is construed as entering into and forming a part thereof. See note to Gray v. Western Union Tel. Co., 56 L. R. A. 303; Ayer v. Tilden, 15 Gray, 178 (77 Am. Dec. 355); Preston v. Walker, 26 Iowa, 205 (96 Am. Dec. 140); Burrows v. Stryker, 47 Iowa, 477. In Carson v. Smith, 133 Mo. 606 (34 S. W. Rep. 855), the action was for the conversion of property in Kansas, and the court held that “ where interest is allowed, not under contract, but a's damages, the rate is according to the law of the place where the suit is brought.” But see, apparently to the contrary, Kiefer v. Grand Trunk R. Co.(Sup.) 42 N. Y. Supp. 171, subsequently approved by the Court of Appeals. In Thomas v. Western Union Tel. Co., 25 Tex. Civ. App. 398 (61 S. W. Rep. 501), decided by an intermediate court of Texas, the defendant delayed delivery of telegram sent to plaintiff in Arkansas. In that
In the instant case no right created by statute was asserted to have been violated. The rules of the common law alone were invoked. These obtain with equal force in Illinois, Iowa, and other States. They have been adopted, in so far as applicable, from the same common source, and must necessarily be assumed to be the same everywhere. Mistakes in interpretation may be made, but the principles of justice go on forever. Every -court will determine for itself what these may be as found in the common law.
VII. Many others of the 485 assignments of error, covering 114 printed pages, have been argued, but in-view of our conclusion it seems unnecessary to farther extend this opinion by their consideration. The ingenuity displayed in discovering so many errors, repeating them in so many different ways and with such prolixity, ought not to pass unnoticed. But this should not be at appellee’s expense, and, as all proper assignments could have been included in 14 pages, the cost of printing the remaining 100 pages will be taxed to appellant.— Reversed.