111 Ala. 194 | Ala. | 1895
This is an action of trespass de
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It is quite true that a defendant is not bound in general to set up matter in recoupment, and that, omitting to do so,he may afterwards,proceed by independent action to recover the damages which he might have recouped against the plaintiff. But we are unable to see why these considerations should have any bearing on the effect of a judgment rendered in defendant’s favor when he elects to plead recoupment, and his plea is sustained. He might by failing to interpose the plea allow the plaintiff to establish a debt against him, just the same result might ensue from his failure to plead non est factum in an action against him on a forged promissory note ; but if he does make the defense and it is sustained, the judgment is as conclusive against the existence of the alleged debt in the one case as the other.
Watson, therefore, not being a creditor of Kirby & Sons, the sale and transfer of the subsequently attached property by the latter could not be fraudulent and void as to him, whatever may have been its infirmities as between Kirby & Sons and Bodman, on the one hand, and creditors of the former, on the other ; and not only does the special plea of justification, based on the writ and the supposed invalidity of the sale by Kirby & Sons to Bodman, fail of support in the evidence; -but the plea of not guilty considered solely as a bar and defense to the action intoto is also lacking in support by the evidence. As between Watson and Bodman, the latter had a perfect title and the rightful possession of the property taken by the defendants. The writ against Kirby & Sons afforded them no justification for the taking. They were
But the trial judge, in our opinion, did err in several particulars bearing upon this matter of the measure of damages to which plaintiff was entitled. It is a thoroughly well settled doctrine of the law of trespass, that under the general issue a defendant may put in evidence, in mitigation of damages, the fact that the property which he has wrongfully taken from the plaintiff has been returned to the plaintiff, or has been applied for the benefit or advantage of the plaintiff with his consent, express or implied, or through legal proceedings instituted by third persons ; and that to the extent such application has been made, the recovery, which ordinarily would be the value of the property, is mitigated and reduced. This rule finds its most frequent illustration in cases where the property has been attached or levied upon in the hands of the trespassers by creditors of the plaintiff in trespass, or subjected to the satisfaction of some mortgage or other lien held by third persons, as against said plaintiff upon it. — Hopple v. Higbee, 3 Zab. (N. J.) 342; Stewart v. Martin, 16 Vt. 397; Kaley v. Shed, 10 Metc. (Mass.) 317; City of Lowell v. Parker, Ib. 309 ; Montgomery v. Wilson, 48 Vt. 616 ; Bird v. Womack, 69 Ala. 390; Keith v. Ham, 89 Ala. 594; Street v. Sinclair, 71 Ala. 110.
But the rule we have stated is based upon a principle which is broader than is illustrated in the cases we have just cited. It is that a plaintiff in trespass for the mere wrongful, as distinguished from wrongful and malicious, taking of property, is entitled to recover the value of his interest only in the property of which the trespass has deprived him. If, notwithstanding the trespass, the full value of the property, or of his interest in it, as the case may .be,'has directly or indirectly inurea to his benefit, it cannot be said that he has been materially damaged, and his recovery would be nominal. If his interest is less than the whole, his damage would be gauged accordingly, however this diminution may have occurred. If it came to him in such a lyay as to be charged with any outstanding right existing between his vendor
The defendants should, therefore, have been allowed to show that the property which they wrongfully took from the plaintiff had to some extent been rightfully appropriated by Harris Brothers to the satisfaction of their claim against Kirby & Sons, and the evidence offered by them *to this end, tending to show that Kirby & Sons were indebted to Harris Brothers at the time of the sale and transfer of this property by the former to Bodman, that said sale and transfer were fraudulent and void as to the creditors of Kirby & Sons, and that the property, or some part of it, had been applied to í¿ie payment of Harris Brothers’ debt, and thus to the use of the owner thereof, should have been received in mitigation of damages. It was error to exclude from the jury all the evidence going to show fraud in said sale and transfer, which had been admitted, but was subsequently ruled out on plaintiff’s motion, and to exclude the writ of attachment and sheriff’s return thereon in the case of Harris Brothers v. Kirby & Sons, offered to show that this property was also levied on in that case and sold to pay Harris Brother’s debt.
Reversed and remanded.