Jones v. Gilbert

13 Conn. 507 | Conn. | 1840

Sherman J.

Upon the motion in arrest, the defendants take the following exceptions to the declaration.

1. First, that the assignment of the breach of the promise to re-deliver the goods, is too narrow. The stipulation in the receipt was, to deliver them to the plaintiff, or some other proper officer; but the breach assigned is, a refusal to deliver to the plaintiff only. It is insisted, that the defendants may have delivered the goods to some other proper officer, and so kept their engagement, consistently with this allegation.

By a “ proper officer,” is meant one having a right to levy on these goods in behalf of Crowley, in the suit in which they were attached. But the declaration shews, that the execution, which alone could confer this right, was in the hands of the plaintiff to levy and collect; and, of course, there could be no other proper officer to whom they could be delivered. Although the declaration has not, in this respect, the greatest possible certainty, yet we consider it sufficient, especially after verdict.

2. It is next contended, that the breach assigned, is, in another point, too broad. The declaration charges, it is said, that the defendants did not deliver the goods, on demand, and pay the damages for non-delivery. This allegation, they insist, may be true, and still they may have either delivered the goods, or paid the damages, either of which would fulfil their engagement They had stipulated to do but one, and the plaintiff complains that they have not done both.

This construction of the declaration is not warranted, by its language. Their refusal to deliver to the plaintiff, is first distinctly averred, which would be sufficient, even if followed by a subsequent and separate allegation that they had not delivered and paid. But there is no such allegation. The words are these : “ and thereupon, afterwards, on the 9th day of January, 1838, the plaintiff demanded said goods of the defendants to satisfy said execution; but the defendants, their said promise and undertaking not regarding, did not deliver said goods to him, the plaintiff, though he was then and there ready to receive the same, and made demand thereof; but the defendants wholly neglected and refused, and still do neglect and refuse, to deliver the same to the plaintiff, and to pay him his costs and damages arising from their said neglect.” That is, they refuse to deliver the goods, and also refuse to pay the costs and damages arising from their neglect to deliver them. The complaint is not, that they have not done both ; but that they have not done either the one or the other.

3. Exception is also taken to the declaration, because it does not state, that the plaintiff left, with the defendants in the original action, a true and attested copy of the writ, with his doings thereon, describing the property attached, as required by the 5th section of the act for the regulation of civil actions ; and if not, it is contended, that he had no lien on the goods, and no right to demand them, by virtue of the receipt.

On the 7th day of June, 1837, immediately upon the attachment of the goods, at the suit of Crowley, and before it became necessary, by law, to leave a copy with Pundersofti and Baker, these defendants, who were strangers to that action, took the goods from the plaintiff, and gave him their-receipt. In the receipt they state, that the goods had been, that day, taken by Jones on the writ of attachment. There is nothing in this exception to shew, nor is it contended by the counsel of the defendants, that the receipt was not then valid. The title of the officer to the property, as against these defendants, is derived from their promise, made upon sufficient consideration. If any subsequent neglects occurred in his proceedings, by reason of which the goods could not be holden to respond the judgment; or if the writ were abated, or, for any other cause, no judgment rendered for Crowley, the officer would be accountable for the goods to Punderson and Baker. Neither of these causes, nor any other apparent on this record, would justify the defendants in refusing a redelivery. That the receipt was obligatory, when given, is sufficient to entitle the plaintiff to his action, unless the defendants have become subsequently absolved, for some cause yet unknown to the court. And although the plaintiff avers, that a judgment was rendered, and execution issued, against Punderson and Baker, and that he demanded the goods to be applied on that execution ; yet the demand and refusal is all, in these averments, which is essential to a recovery. The rest go merely to the damages. Even if the writ had never been returned, the officer would be entitled to a re-delivery of the goods attached.

4. But it is further objected, that the plaintiff, in his declaration, has shewn no authority to attach the goods at all, as he does not aver that any amount was prescribed in the original writ. It is described, in the declaration, to be a writ of attachment, on which bonds for prosecution were duly given, directed to proper officers, returnable to a court of competent jurisdiction, signed by proper authority, demanding 500 dollars damages, and in all respects according to law. No question is made, but that the service and return are sufficiently set forth in the declaration. The judgment shews, that the attachment was not excessive. We are of opinion, that the process is sufficiently described, to shew, that the officer was not a trespasser; and that the want of a more perfect description, if it was necessary, is supplied by the verdict.

The motion for a new trial takes several exceptions to the ... , • r i decisions of the superior court.

j The first is, to the admission in evidence of the return of the officer on the original writ, to prove that a copy of the writ and of the return, describing the goods attached, was left with each of the defendants. As to this fact, after stating the attachment, by virtue of the writ, and describing the property, the return js in these words : “ I also left a true and attested copy with the within named defendants according to law, with my indorsement.” This, certainly, conduces to prove the fact. But this objection is not pursued in the argument.

2. The receipt offered in evidence, by the plaintiff, was objected to, as being materially variant from the statement in the declaration, which describes the property as attached by virtue of “ a writ returnable to the county court to be held at New-Haven, within and for the county of New-Haven, on the 4th Tuesday of June, 1837;” but the receipt produced merely counts on a writ “ returnable to the next county court, on the 4th Tuesday of June, 1837,” without naming the county or place of session: that is, the declaration describes the former process more fully than it is described in the receipt. This language in the declaration does not purport to describe the receipt itself, but the writ by which the property was taken. Both descriptions are true ; and the facts, so far as they are stated in both, are the same. There is no variance ; nor is there any uncertainty in the description of the writ or property, as given in the receipt To sustain this objection, on the ground of variance, the declaration must have described the receipt as containing the same description of the original process, which is given in the declaration itself, as to this particular. But whether the receipt contained any description of the court to which the original process was returnable, is no where stated in the declaration. This objection is, therefore, groundless.

3. It was admitted, on the trial, that most of the goods attached, and delivered to the defendants, were taken as the property of Amos Baker; and the defendants offered evidence to prove, that, at the time when said property was attached, and when the demand was made, the property was pf less value than that specified in the receipt. The court rejected this evidence, on the ground, that the defendants had stipulated in the receipt, that the goods were of that value. No testimony was offered to shew a depreciation after the date of the receipt. But evidence was admitted to prove, that a part of the goods belonged to William Baker, one of the defendants in this suit; and to prove the value of that part. The court instructed the jury, that, if they should find a verdict for the plaintiff, he would be entitled to recover the sum which would remain, after deducting from the stipulated valuation, the real value of the goods of William Baker, if any were his; but not exceeding the amount of the execution, with the interest and costs which had arisen thereon.

We are of opinion that this charge was correct. It must have been given in reference to the evidence before the court. There might have been such an amount of property attached, that the officer would be entitled to a larger measure of damages, to enable him to account over to the debtors, after discharging the execution. Such a state of facts, however, cannot be presumed ; and had it existed, it would lay no foundation for complaint on the part of the defendants. This rule gave the smallest measure of damages to which the plaintiff was legally entitled.

The valuation given in a receipt for property attached, has ever been justly considered, upon demand in behalf of the creditor in the execution, and a refusal, as conclusive on the parties. So far as the security of the debt is its object, it is intended as a stipulation. Even receipts for property which had no existence, have been deemed an estoppel, in relation to the rights of the creditor. The officer becomes responsible to the creditor for the amount thus stipulated, if there is no subsequent depreciation; and the receipter’s engagement is, to save him harmless. Where, as in this case, the amount of the debt is not controverted, and that exceeds the stipulated value, the question as to the actual value is irrelevant. The ratification of such agreements, according to their just intent, is important to both debtor and creditor. The debtor, by procuring some friend to give a written acknowledgment of the receipt of property, which has not been attached at all, estimated at a sufficient sum, with an engagement to redeliver it on demand, shields his goods from seizure, secures the debt, and protects the officer. When the debtor is will-in£to secure whatever judgment may be ultimately rendered, is desirous, in the mean time, of disposing of property actually attached, the object of each party may be attained, by an estimate acceptable to the creditor or officer. These agreements are voluntary and lawful. To nullify them, would divest the parties of the important liberty of making arrangements for their mutual benefit , at a crisis deeply interesting to both. But, where property is actually delivered, the receipter will not be responsible for any depreciation occurring without his neglect, nor estopped from claiming it as his own, if taken wrongfully for the debt of another. In this case, no evidence as to these points, has been excluded.

4. A question arose on the trial, whether the demand on Punderson and Baker for payment on the execution, was prior or subsequent to the demand on these defendants for the re-delivery of the property. It seems to have been assumed, by the counsel on both sides, and so the court charged the jury, that, unless the officer made a previous demand on the debtors, these defendants were not liable on their promise. In pursuance of this assumption, evidence was introduced, on both sides, relative to the question of priority ; and, among other testimony, the plaintiff offered his own return. It is not denied, that this was proper evidence to shew that a demand for payment was made on Punderson and Baker; nor is it contended, that the return is admissible to shew, that the officer made demand of these defendants for the delivery of the goods. But the court held, that although it was not evidence of a demand for the goods, — as such demand not being an official act, must be shewn wholly by other proof— yet it was admissible to shew, that the demand of payment was before any demand had been made for the delivery of the goods. But we consider both these opinions as erroneous. It was not necessary to prove any such priority. The plaintiff had a right to demand the goods, at any time, even before judgment; for he was accountable for them, both to the debtor and creditor. He had the same right to the possession, as if he had never put them out of his own hands. The promise was absolute, to deliver them on demand, without regard to the judgment or execution. It was, therefore, wholly immaterial, whether the demand for the goods was made before or after the demand for payment.' The responsibilities of the officer would be the same, in either case. It could make no difference, if payment was refused on the execution, as to the officer’s liabilities, whether the goods were in his own possession, or in the hands of the receipter, at the time of such refusal. The amount of his ultimate liabilities, to creditor or debtor, would, in either case, be the rule of damages.

Had the question in regard to the order of time been material, the admission of the return as evidence on that point, being erroneous, would entitle the defendants to a new trial. But under the charge, as it was, the jury have grounded their verdict on proper evidence alone. They were required to find every fact which was necessary to entitle the plaintiff to his damages. Even when they had done this, they were charged not to give a verdict against the defendants, unless, upon improper evidence, they should also find another fact, which was wholly unnecessary and immaterial. Of this error, the defendants cannot complain, as its only tendency was, to increase their chances for success.

5. As it is not stated in the declaration, that the officer was commanded, in the original writ, to attach to any certain amount, it was contended, on the trial, that he could recover only nominal damages. It is not objected, that the original writ, as shewn on the trial, did not prescribe the amount in common form, or that the property attached exceeded the amount prescribed. The question then is, whether an omission in the declaration to describe the original writ in this particular, will prevent a recovery of just damages for property taken in a regular manner, on regular process. We are of opinion, that this objection is not aptly made, on the question of damages. Its appropriate place was on the motion in arrest, where it has already been considered. The jury were to ascertain the damages sustained, by a breach of the promise to re-deliver the goods, upon the evidence before them, of which the original writ was a part. That was read in evidence on the trial: and the omission to describe it more fully in the declaration, was not a matter for the consideration of the jury ; nor had it any just bearing on the amount of damages.

For these reasons, we advise that the motion ⅛ arrest be overruled, and no new trial granted.

In this opinion the other Judges concurred.

Declaration sufficient; New trial not to be granted.