27 Mont. 264 | Mont. | 1902
delivered the opinion of the
court.
This cause comes before us on appeal from the order denying a motion for a new trial and from the judgment.
The respondent has interposed a motion to' dismiss the appeal. The action was prosecuted by the plaintiff against the three defendants named, to recover for tort. The verdict was against all three of the defendants for $3,000. Judgment was taken and entered against the Union Mercantile Company and Louis Hillebrecht only, the court holding Fuhrken not liable. Two notices of intention to move for a new trial were served and filed, — one jointly by the Union Mercantile Company and Hille-brecht, and another by Euhrken. They all, however, filed a single motion in writing for a new trial. This motion was overruled on condition that the plaintiff abate all except $1,000 of the sum awarded by the jury. This he did. The Union Mercantile Company and Hillebrecht appealed. Fuhrken, of course, did not.
The notice of appeal, addressed to the proper parties, is as follows: “You, and each of you, will please take notice that the defendants Union Mercantile Company and Louis Hille-brecht each hereby appeals to the supreme court of the state of Montana from the judgment made, given and entered in the above entitled cause on the 30th day of November, 1898, in favor of plaintiff, and against the defendants Union Mercantile Company and Louis Hillebrecht, and each of them, and modified by order of court made on the 15th day of April, 1899, and the stipulation or waiver filed by the plaintiff on the 25th day of April, 1899, and from the whole and every part of said judg
An undertaking in the sum of $300 was filed, conditioned, after -reciting that the Union Mercantile Company and Hille-brecht are about to appeal to the supreme court, as follows: “Now, therefore, in consideration of the premises and of such appeal,” etc.; and the sureties promise “that the said appellants will pay all damages and costs which may be awarded against them, or either of them, on the appeal, or dismissal thereof.”
The motion to dismiss is upon two grounds: (1) That no undertaking on the appeal of tire Union Mercantile Company has ever been filed, and the only undertaking on appeal herein is an undertaking reciting a joint appeal by the said Union Mercantile Company and Lords Hillebrecht, which said undertaking is conditioned upon the affirmance or dismissal of said joint appeal; and (2) that the notice of appeal does not appear to have been served upon the defendant Euhrken, it being assumed that he is an adverse party.
Appellants, before the hearing of the motion to dismiss, each filed a good and sufficient undertaking, approved by the Chief Justice; they depending upon Section 1740 of the Code of Civil Procedure.
Excellent briefs bearing upon this motion have been filed and considered by this court.
As to the first ground of the motion: If damages and costs should be awarded against both of the appellants, and suit should be brought against the sureties on the undertaking, could there be a valid defense on the ground that the undertaking was void ? We think not. It may be that the undertaking is insufficient, in that, if damages and costs should be awarded against only one of the appellants, or if the appeal as to one should be dismissed,
As to the second reason alleged why the appeal as to the Union Mercantile Company should be dismissed: The reason given is that Fuhrken is an adverse party, and no notice of apt-peal was served upon him. The appellants, the Union Mercantile Company and Louis Hillebrecht, amending the record, by affidavit show service by mailing a copy of the notice of appeal to Fuhrken at his correct postoffice address, and further show that they, the said counsel, on the same day acknowledged service for Fuhrken as counsel for Fuhrken. If Fuhrken he adverse party, because he may be interested in seeing that the judgment be affirmed against the appellants, for that they may be compelled to pay without contribution from him as joint tort feasor,
The motion to dismiss is denied.
This action was commenced in March, 1898, for wrongfully and maliciously procuring, without probable cause, an attachment to be levied upon plaintiff’s goods. It is alleged in the complaint that ever since 1890 the plaintiff has been, and at the time of the alleged grievance was, doing a wholesale and retail business in Lewis and Clarke county; that the defendant Union Mercantile Company was and is a corporation; that on January 4, 1898, the said defendant corporation, by and through the defendants Hillebrecht and Fuhrken, officers thereof, commenced an action in the district court of Lewis and Clarke county against the plaintiff for $2,018.15 and costs, and sued out a writ of attachment; that defendants caused the writ to be executed by levying upon and seizing all of plaintiff’s stock, of the value of $15,000, and retaining possession thereof for two days; that no more than $250 was due to the defendant company, although plaintiff admits that he owed the full sum of $2,018.15 ; that if suit had been brought, and a writ of attachment issued only for what was due, to-wit, $250, the plaintiff could and would have paid that amount and costs, and thus have avoided the attachment; that the defendants maliciously and purposely caused the levy for the amount of $2,018.15 in order to destroy the plaintiff’s business and injure him; that plaintiff was doing a prosperous 'business; and “that, by reason of the wrongful and unlawful acts of the said defendant Union Mercantile Company, plaintiff’s trade and credit have been impaired and destroyed, and will be seriously injured for a long period in the future; that he has been financially cramped and distressed, to his damage in the sum of $10,000.”
The defendants answered, and denied all the material allegations of the plaintiff, except so far as, further answering, they admitted and averred that the debt of $2,018.15 was due at the
There are twenty-eight assignments of error. We shall notice only those designated or referred to in the argument contained in the brief of counsel for the appellants.
Appellants argue, referring to assignments 1, 2, 3, 4, 5, 7, and 11, that “it was error to admit evidence relating to respond
It is alleged and denied, respectively, tbat tbe business of tbe respondent at tbe time of tbe alleged levy was prosperous. In a case of malicious attachment and seizure without probable cause, it is not error to admit evidence as to loss of credit directly traceable to. such levy and attachment suit. Tbe weight of authority is to> tbe effect tbat it is not error to admit evidence tending to show tbat by wrongful and malicious attacbment tbe business credit of tbe alleged debtor has been injured. (Shinn on Attacbment, 379, and cases, cited; Kennedy v. Meacham (C. C.), 18 Fed. 312; Tynberg v. Cohen (Tex. Civ. App), 24 S. W. 314; Drake on Attachment (7th Ed.), 745; O’Grady v. Julian, 34 Ala. 88; Flournoy v. Lyon, 70 Ala. 308; 19 Am. & Eng. Enc. Law, 650, 651, 704, and citations.) The four cases, to-wit, Lowenstein v. Monroe, 55 Iowa, 82, 7 N. W. 406, Campbell v. Chamberlain, 10 Iowa, 337, Mitchell v. Harcourt, 62 Iowa, 349, 17 N. W. 581, and Anderson v. Shone, 72 Was. 566, 40 N. W. 214, 7 Am. St. Rep. 885, are contra-. Tbe Iowa court admits tbat there are courts Avhich do not agree Avith it, and says tbat “in most of tbe other states” tbe rale is in conformity Avitb Campbell v. Chamberlam, supra, but do.es not cite any case of these other states. ° The Wisconsin case does not, in terms, hold tbat recovery in case of wrongful and malicious at-tacbment cannot be had for injury to credit resulting from such attacbment.
The assignments are not tenable.
Deferring to assignments not designated in the argument, appellants say that it was prejudicial “to permit Mr. Hayes to testify what he Avould have done if appellants, did not agree to extend the time of tbe payment of tbe $200, and tbat be would let it stand, and take tbe 'chances of being attached.” No attempt is made to argue this point, or. to show why this was prejudicial, if it Avas. We are even left in the dark as to' wha.t $200 is referred to.
There is a suggestion in the brief that the court was incon
Counsel say it was error to overrule appellants’ ■ motion to strike out the testimony relating to the publication of the attachment, and allowing other tesimony to be introduced on that subject. This doubtless refers to assignment 6, which is as follows: “It was error to overrule appellants’ motion to1 strike out the testimony relating to the publication of the attachment through Dun’s Agency, and its being wired over the country, and in admitting other testimony upon the subject of the publication of the attachment proceedings.” No reference is made to the parts of the transcript where the “other” testimony can be found. It is argued that the court was wrong, because it was not alleged in the complaint, or proven or attempted to be proven, that appellants had anything to do with any publication of the fact of such attachment. Counsel argues — Eirst, that, if not pleaded, publication, cannot he proven; and, second, if pleaded, proof may not be offered unless defendant was party to such publication. In support of this point, appellants cite three cases: Maskell v. Barker, 99 Cal. 642, 34 Pac. 340; Tynberg v. Cohen (Tex. Civ. App.), 24 S. W. 314; and Jamison v. Weaver, 81 Iowa, 212, 46 N. W. 996. The complaint in the Maslcell-Ba/rlcer Case alleged that the publication caused the plaintiff much anxiety. It says nothing about credit There was an attempt to’ levy upon real estate; but, the writ not hav
The Tynberg v. Cohen Case is not in point, for that the announcement in the paper was not such as one expects to be made in a case of attachment. The newspaper falsely announced that the alleged debtor had failed in business. The court, in discussing the point, said: “The mere levy of the attachment * *
* did not authorize such a publication.” This language does not exclude the proposition that a levy of attachment would authorize a newspaper to state that an attachment had been levied.
The Jamison-'Wemer Case is not in point. The court in that case held that it was not error “to refuse to allow the defendant to prove that his creditors had returned to him printed slips stating that he had been attached, and that notices had been sent to the commercial papers.” It nowhere appears in the statement of that case that the levy of the attachment Avas alleged to be malicious and without probable cause. It was merely said to be Avrongful. There is nothing to show that the defendant, in his counterclaim against the plaintiff, alleged damages for injury to his credit. The Avord “credit” does not appear in the opinion or in the statement of the case. Although the Iowa court-says that the testimony Avas clearly inadmissible unless the publication was traced to the party suing out the writ, this remark
Being of the opinion, as we are, that malicious attachment without probable cause is a ground of action, in the trial of which action testimony is admissible to prove injury to business credit, it follows, as we think, that it is proper to prove that the news of the attachment was published in the usual way to the world in general, and to the business world in particular. It is a matter of common knowledge that attachments, levy of execution, assignments, mortgages, and the like, tending to1 show business embarrassments and difficulties, are published for the information of all persons who are doing or who are likely to do business with the alleged debtors. It is a matter of common knowledge, also, that there are information agencies, long established, for the sole purpose of giving such information.
A point also relied upon is that there could be no testimony as to publication, since there was no allegation in the complaint of publication, and that the same is irrelevant, immaterial and incompetent, and that there is nothing to show that the defendants, or any of them, caused or induced such publication. If one rightfully and lawfully cause an attachment to- be levied upon the property of a person in business, one naturally expects the fact of such attachment to be published to the business world, and that the credit of the person attached, if he have any, may be injured; but such a person is not liable in damages, for he has the right to levy the attachment to secure an honest debt. If the attachment be made maliciously and without probable cause, he is liable for damages to the alleged debtor, and damage to his business credit naturally follows, and such damage should be compensated. In Michigan (Brand v. Hinchman, 68 Mich. 590, 36 N. W. 664, 13 Am. St. Hep. 362) it is said that such publication, naturally injured the credit of the person sued. The Michigan court does not cite any court’s opinion in support of its declaration, but it was a question to be decided, and we agree with its views. If such injury is naturally to be expected, and such publication to be naturally expected, because
Complaint is made, and the point argued, that the court erred in excluding offered testimony to prove that the plaintiff herein, while the sheriff was at the store, settled the demands of the-defendants in the attachment suit, procured the suit to be dis
As to tbe assignments and argument referring to tbe instructions given and refused, it is enough to say that we find no error in those given and assigned as erroneous. If tbe court bad admitted tbe evidence offered to prove tbe circumstances of tbe alleged settlement, then instruction No. 4, refused, might* as tbe evidence might appear, have been proper, for it correctly states tbe law that waiver of a right to demand cash, and tbe accepting of something else of value in consideration of a lawful contract, is a good consideration to- support sucb contract.
We do not notice tbe argument as to instruction No-. 5, ref-fused, for tbe reason that no assignment refers to- that instruction.
Instruction No. 6, refused, is covered by instruction No-. 11, given; hence it was not error to refuse tbe one asked by appellants.
We find no error in refusing to give defendants’ instruction No. 18, it being contrary to tbe views expressed hereinbefore as to damages for injury resulting from tbe publication of tbe alleged attachment.
It was not error to refuse defendants’ instruction No. 14, as it states, with other things, that, in a case of a “wrongful levy,” “any damages that may have resulted to tbe defendant during tbe time tbe property was wrongfully detained” might be recovered. Tbis is too broad. Neither a mere wrongful levy, nor a malicious levy, without probable cause, will warrant a recovery for “any damages to- tbe defendant during tbe time tbe property was 'wrongfully detained.” We add that malicious levy without probable cause is a wrongful levy, but not every wrongful levy is malicious; hence tbe defendants, in offering tbis refused instruction, should have added some apt word or
Complaint is made in the argument that the court admitted some evidence, over the objection of the appellants, as to' when the money owing by respondent was to be paid, according to an understanding and a long established practice, without express agreement, and that the court was emphatic as to its opinion that the evidence was admitted to corroborate the respondent, Hayes, and to show a contract, and, further, that the court inconsistently gave instruction No. 14. We see no error in the instruction. It is as follows: “If, by reason or pursuant to a uniform practice, extending through years, it was mutually understood by the defendant company and the plaintiff that the plaintiff was to have until ‘pay day’ of the succeeding month in which to pay for goods purchased during the -month preceding, then he was entitled to such time, though it was never expressly and in so many words agreed between the parties; in other words, an agreement for time may be implied from the acts of the parties, the circumstances and conditions of their business relations, though express words may not have been employed to indicate their agreement.”
The evidence is conflicting, and we cannot say that the court erred, on the hearing of the motion for a new trial, in holding that the evidence would support a verdict of damages in the sum of $1,000, to which amount the verdict-was reduced by the court.
Because of the errors found and discussed herein, the order denying the motion for a new trial and the judgment are reversed, and the cause is remanded for a new trial.
Reversed and remanded.