Greenleaf v. Ludington, 15 Wis. 558

15 Wis. 558 | Wis. | 1862

By the Court,

Dixon, O. J.

The refusal of the defendant Railroad Company to transfer upon its books the plaintiff’s certificate of stock, was a tort for which the plaintiff was entitled to maintain his action in the nature of ah action on the case against the company. He has in fact done so and obtained a judgment for the damages suffered by reason thereof. The defendant Ludington was a party to that tort and primarily responsible to the plhintiff for the damages sustained. He was the prime mover — the exciting cause of the wrong, having for his own sole benefit given a bond of indemnity which led directly to its commission. He likewise was a'defendant in the action against the company, but final judgment was rendered in his favor. The facts in the two actions, both in pleadings and proof, are the very same. In truth, the evidence in the former action was, by stipulation, read upon the trial of this. Ludington now sets up that judgment in bar of a recovery here, and I think the answer is good.

The rule of law is well stated by Beabdsley, C. J., in Davis vs. Newkirk, 5 Denio, 94, that all who direct, request or advise an act to be done, which is wrongful, are themselves wrongdoers and responsible for all damages. It is stated perhaps with more accuracy in Judson vs. Cook, 11 Barb., 644, that all who bid, command, advise or countenance the commission of a tort by another, or who approve of it after it is done, if done for their benefit, are liable in the same manner, as they would be if they had done the same act with their own hands. Every unlawful interference with, or assertion of control over, the property of another, is sufficient to subject a party to an action. Wall vs. Osborn, 12 Wend., 39; Phillips vs. Hall, 8 id., 613; Dreyer vs. Ming, 23 Mo., 434. The most frequent instances of the application of these principles are to be found in actions of trespass vi et armis. Scott vs. Shepherd, 2 W. Black., 892; Guille vs. Swan, 19 Johns., 381; Leame vs. Bray, 3 East, 593. “ To render one man liable in trespass for the acts of others it must appear,” says C. J. Spencer in Guille vs. Swan, “ either that they acted in. concert or that the act of the individual to be charged, ordinarily and naturally produced the acts of the others. ” B ut the doctrine is not limited to immediate and forcible injuries. The same reason applies to those which are indirect and committed without violence; and so are the authorities. Opinions of the justices in Scott vs. Shepherd and note, and the opinion of Lord Ellenborough in Leame vs. Bray; Clark vs. Whitaker, 19 Conn., 319. Gould, J., in Scott vs. Shepherd, says : “ The whole difficulty lies in the form of the action and not in the substance of the remedy."

Authorities are very numerous, that a request or indemnity to a sheriff or other executive officer to do an act or withhold property, which turns out to be wrongful, makes theparty liable for all damages which may ensue. Davis vs. Newkirk and Judson vs. Cook, supra; Root vs. Chandler, 10 Wend., 110; Coats vs. Darby, 2 Coms., 517; Herring vs. Hoppock, 3 Duer, 20. And in such cases the execution of a bond of indemnity by a stranger or one having no interest in the process, but who signs as security merely, is said to be sufficient to charge him without evidence of any other interference. Davis vs. Newkirk; Herring vs. Hoppock, supra.

- It is impossible to distinguish between these cases and the one at bar. The refusal of the company to make the transfer, resulted naturally and ordinarily from the giving of the bond of indemnity. The plaintiff alleges and proves this to have been so. Not only that, but he also alleges, and, as I think, proves, that Ludington requested the company not to transfer the stock. He did the same thing in the former action, but the judge, though he found the facts, decided as matter of law that there could be no recovery. That decision was no doubt erroneous, yet binding in all collateral proceedings.

It is true that Ludington then denied and still does, that he made any direct request, and insisted that the refusal of the company was voluntary and therefore he ought not to be held responsible. He likewise insisted, as in this action, that the bond of indemnity was given to protect the company from loss upon the new and not to prevent a transfer of the old stock. If it be admitted that there was no other request than such as is to be implied from the giving of the bond, that of itself is sufficient. No one will suppose that without the bond the company would ever have refused the transfer. That was the source, the causa causans, of all the trouble and damage which came to the plaintiff. It was in effect a continuing request to the company not to make the transfer, a constant assertion that the old stock was his, the same as if he had been in the company’s office when it was presented, and had said, “ This stock belongs to me — do not transfer it, and I will indemnify you.” Having given the bond to induce the company to issue the new stock, and thereby to repudiate the old, he cannot be allowed, when such repudiation actually takes place, to say that it was the mere voluntary act of the company. It was a matter in which the company had no interest, but acted exclusively for his advantage. As was said in Coats vs. Derby, he will not be permitted to show that the act was not the consequence of the request which the law adjudged to be part and parcel of the act itself. No man is allowed to incite another to a wrong, and after its commission to give his want of influence in evidence in bar of an action. Such a principle would enable a man to encourage another to commit murder in his presence, and then escape upon the ground that the homicide was malicious enough to have done the same thing, if he had remained silent. The law, with a sounder morality, adjudges the abettor guilty of murder.

It furthermore appears that, after the refusal, the plaintiff called upon Ludington and requested him to go to the company and give his consent to the transfer, which he refused' and neglected to do. That was enough to charge him with the consequences of the wrong, upon the principle of a subsequent ratification of an act done for his benefit.

As to the objection that the bond was given to protect the company from loss by reason of the issue of the new stock, and not to prevent a transfer or recognition of the old, it is true that such is its language. Nevertheless the only method in which the company could with safety avail itself of the security afforded by it, was to reject the old stock. The bond recited that Ludington owned and bad lost the old stock. If the company recognized it without suit in which it could be judicially established that Ludington did not own and had not lost it, it took upon itself the risk and trouble of proving these facts, the very thing which the bond was designed to guard against, and then, if it failed, it would be wholly without security. Hence it could not do otherwise than refuse, and if sued give Ludington notice to defend. The refusal, therefore, was the legitimate consequence of accepting the bond and issuing the new stock.

For these reasons I am of opinion that the former judgment is a bar to any recovery in this action. My brethren, however, are of opinion that there can be no subrogation or right of action in equity upon the bond at the suit of the plaintiff; that its proceeds were mere general assets in the hands of the company, and therefore that the action should be dismissed. There is some confusion in the authorities upon that subject, and my mind is not clear. Hence I prefer to rest my judgment upon the grounds above stated, which to me are plain and intelligible and about which I entertain no doubt. For if it be admitted that the plaintiff had a remedy in equity upon the bond, it was concurrent with that at law for the wrong, and the judgment in the one court bars a proceeding in the other.

The judgment of the court below must be reversed, and the case remanded with directions that it be dismissed.