50 Mo. App. 440 | Mo. Ct. App. | 1892
Lead Opinion
— This is an action of trespass de bonis asportatis.
It appears from the evidence that one Martin Lund was a dealer in lumber and building material at Burlingame, Osage county, Kansas, and was indebted to the plaintiffs and Caryl & Co. (a firm composed of defendant and Barker), who were wholesale lumber dealers respectively at Chicago and Kansas City. It appears further that Lund was indebted to the former in the sum of $1,800, and to the latter in the sum of $158.95, evidenced by a promissory note. The undisputed evidence was that the plaintiffs were put in possession by Lund of his entire stock of lumber and builders’ material for the purpose of securing them m the indebtedness of the latter to the former. While the plaintiffs were so in possession, Caryl & Co. sent their note to Mr. Russell, an attorney at Burlingame, for collection.' In the letter of transmissal Caryl .& Co. use this expression: “Please inform us if there is not some way by which the balance can be collected, and that at once by attachment or otherwise 1” .It does not appear that Russell made answer to the interrogatory thus propounded- to him. It seems that Russell was representing the plaintiffs in respect to some questions that had arisen in litigation under their claim to the Lund stock of lumber. It further appears that
It does not appear that Caryl & Co. were aware of the action of Mr. Russell in the matter, until the plaintiffs brought this action against them to recover the value of the lumber which the constable took from them. The plaintiffs had judgment, and the defendant Caryl has appealed.
I. The first ground upon which the defendant challenges the judgment is that the trial court erred in its action in admitting in evidence the copy of the mortgage for the reason that instrument was not certified according to the act of congress, nor was it a record -or exemplification of an office book within the meaning of section 4844, Revised Statutes, nor was there any foundation laid for the introduction of secondary evidence. The certificate of the register of ■deeds of Osage county, in the state of Kansas, declared
Now it is obvious enough that the certificate of the register of deeds proves no more than that the instrument was received and filed by him according to his indorsement thereon. This certificate does not prove the execution of the instrument, and this did not entitle it to be received in evidence, even in Kansas. A mortgage, to be valid, is not required to be acknowledged under the laws of that state. Nor is it required, as in this state, to be recorded before it is valid and binding. As neither a mortgage nor a copy thereof is required in that state to be recorded in order to obtain validity, it is quite difficult to understand how a copy of such an unrecorded instrument can be regarded as “a record or exemplification of the office books kept in any public office” of our sister state of Kansas, within
II. The appealing defendants further contend that the trial court erred in giving an instruction for plaintiffs which, in effect, told the jury that if Oaryl & Co. ■caused an execution to issue on their judgment against Lund and placed it in the hands of the constable, and that the same was levied on lumber described in the ■chattel mortgage, which was in possession of plaintiffs .against the objections of-plaintiffs, and that the constable took the lumber from the possession of plaintiffs .and removed the same, then Caryl & Co. were liable to plaintiffs for the value of the lumber. "When a plaintiff places an execution in the .hands of an officer for service, he is presumed to intend that no action shall be taken thereunder not authorized by the terms of the writ. The officer may seize the property of a stranger or do any other unauthorized act without creating any liability against the plaintiff, because the plaintiff is not presumed to have directed or ratified the illegal transaction. But this presumption may be rebutted. The injured party may show the plaintiff was a co-trespasser with the officer, and may make both responsible for the .abuse of the writ. So, where the plaintiff advises or directs it to be made, he is a co-trespasser with the officer. Perrin v. Claflin, 11 Mo. 13; Canifax v. Chapman & Wells, 7 Mo. 176; Page v. Freeman, 19 Mo. 422; Freeman on Executions, sec. 273; Mechem on Public Officers, sec. 904; Mechem on Agency, sec. 839.
In Dameron v. Williams, 7 Mo. 139, it was declared that if a constable, acting under authority of plaintiff’s execution, sold property which had been previously conveyed by defendant to one Williams to secure a debt, without any communication with the execution
The only question then is whether Caryl & Co. are responsible for the acts of their attorney in advising .and directing the trespass. Vaughn v. Fisher, 32 Mo. App. 29, was where the sheriff had wrongfully levied a writ of attachment upon certain property, and, after the levy had been made, the attorney for the attaching plaintiff moved the court issuing the writ for an order to sell the attached property. It was contended in a suit by the owner of the property so wrongfully seized .and sold under the attachment against the attaching plaintiff, that the plaintiff was not liable for the reason the trespass was committed by others, and that there was no evidence of ratification of their acts by him. It was said by the judge who delivered the opinion in the
So, it was declared in Davis v. Hall, 90 Mo. 659, 665, that “the authority of an attorney in virtue of bis employment extends tó tbe conduct and management of tbe cause in which be is engaged, in and out of tbe court; and be may do all things incidental to tbe prosecution of tbe suit, and which affect tbe remedy only, and not tbe cause of action.” In Guillaume v. Rowe, 94 N. Y., it was said that a party is bound by tbe acts of bis attorney, although be does not give immediate direction as to tbe proceedings in an action, or is not with him at its successive stages. In Poucher v. Blanchard, 86 N. Y. 256, it was said that tbe law which regulates tbe relation between attorney and client is that of agency, and it is elementary law that tbe principal is bound by tbe acts of bis agent performed within tbe scope of bis authority, and be is thus not only bound by tbe contracts of bis agent, but is responsible for bis negligence and wrongful acts. In Foster v. Wiley, 27 Mich. 244, it was declared by Mr. Justice Cooley, who delivered tbe opinion in the case, to be tbe result of all tbe authorities, that when one puts bis case against another in tbe bands of an attorney for suit, it is a reasonable presumption that tbe authority be intends to confer upon tbe attorney includes such action as tbe
According to the principles announced in the foregoing authorities it would seem that when Caryl & Co. put their note against Lund in the hands of Russell, their attorney, for collection by suit, that they thereby conferred upon him the authority to take such action as he should decide necessary in the prosecution of their demand, and, therefore, if the latter directed a wrongful levy on the mortgaged property or ratified such wrongful levy after made, then the former must be held as having approved the same, and are, therefore, liable for the wrong complained of. And whether the words of the letter from Caryl & Co. to Russell already quoted were those of inquiry or direction cannot alter the casé, since it is not disputed that Russell was engaged by Caryl & Co. to collect the note. He was the agent of Caryl & Co., and, if while acting in the furtherance of their interest he directed or subsequently approved the commission of the wrong for which this action is brought, they are' liable to the plaintiffs therefor. We do not, therefore, think the trial court erred in giving the instruction in this paragraph referred to.
III. The further ground of appeal is urged that the trial court erred in giving plaintiffs’ instruction, numbered 1, which told the jury if the defendants offered to give possession of the goods seized under their execution against Lund, and that the goods were then in as good condition as when seized, the jury
The undisputed evidence shows that the constable levied the execution of Cqryl & Co. on two parcels of lumber, one which was on what is termed the Lund lot and the other the Playford lot. The value of the two parcels was $1,400. That on the Playford lot was of the value of $900, and that on the Lund lot was of the value of $500. The lumber on the Playford lot was taken by the constable against the will of plaintiffs and by the employment of force and removed to the Lund lot where it was roughly piled up and mixed. That which was on the Lund lot when the levy was made remained in statu quo. The attorney of Caryl & Co. directed a release of the levy, and then offered to restore all the lumber, which plaintiffs refused to accept.
The rule of law in such cases is that if there be a wilful taking of the property, or the property suffered any injury or deterioration in value, the defendant cannot compel the plaintiff to accept the property even in mitigation of damages. Ward v. Moffett, 38 Mo. App. 395. And evidence that the defendant has relinquished all claim to the property, that he never removed it from the place where it originally was, and never, in point of fact, converted it to his own use, has been held admissible in mitigation of damages, Delano v. Curtis, 7 Allen (Mass.) 471. According to these rules,, the seizure and removal of the lumber which was on
IY. The defendants7 further ground of assault upon the judgment is that the execution under which the constable made the levy was void. Without entering into an extended discussion of this point of objection, it is sufficient to say that if the execution was void it afforded no protection for the constable nor to Caryl & Co. who advised and directed or subsequently rati-
We have carefully considered the other points made in the very elaborate and exhaustive brief of the defendant; but find nothing therein which would justify us in reversing the judgment. We do'not think any of the vices pointed out in the plaintiffs’ instructions are such as prejudice the defendants on the merits. The judgment must be affirmed.
Rehearing
ON MOTION NOE REHEARING,
— Action of trespass de bonis aspor-tatis.
The defendants’ answer, in effect, admits the execution of the mortgage, for it as therein alleged “that after the execution of the said mortgage,” etc. This must be regarded as an explicit admission of the execution of the mortgage charged in the petition to have been executed by Lund to plaintiffs.
It is expressly admitted by the answer that Russell, who was defendants’ attorney, through Fish, another attorney, directed the constable to make the levy on the goods. From that part of the answer, which alleges that the goods, levied on by the constable under the execution in favor of the defendants, were released and duly tendered to plaintiffs and by them refused, is implied the admission by the defendants
Under this state of the pleadings the plaintiffs, to ■prove their cause of action, were only required to show the value of the goods so wrongfully taken from their possession by the constable, and this was done. The implied admission of the answer was that the plaintiffs were in the possession of the goods under their mort.gage, which was given to secure their debt, and, if the admissions of the answer are not that broad, the evidence most clearly tends to establish the fact. ■
Now, as the plaintiffs were in possession of the goods, having a special property therein at the time the defendants caused the constable, to make the levy thereon of what the latter say was a void execution, it ■cannot concern the defendants whether the plaintiffs’ possession was that of mortgagee or pledgee. It could not avail defendants as a defense against their wrongful act whether the plaintiffs’ possession, which «they had caused to be invaded, was acquired in the one way or in the other. The vital question being whether the plaintiffs were in the possession of the property at the time of its caption.
The answer, in effect, admits the trespass, and pleads as a justification the offer to return the property. The difficulty about this defense, as suggested in the opinion, is that defendants did not preserve the property for plaintiffs’ use after their refusal to accept it, and thus be in continued readiness to return it. Ward v. Moffett, 38 Mo. App. 395.
The other special defense interposed by the answer in effect is, that the trespass was directed by another attorney, who was acting under the directions of the defendants’ attorney, and that the latter had no authority from defendants to employ the former, and, therefore, the defendants are not liable for the wrong
We cannot see that the mere fact that Russell had been employed by plaintiffs in another suit incapacitated him from accepting employment by defendants,, or, if so, that plaintiffs are in any way to be affected thereby. If Russell was guilty of any wrongful conduct as attorney of the defendants, it nowhere appears that the same was with the connivance or at the instigation of plaintiffs.
In any view which we have been able to take of the case we think the judgment is for the right party.