109 F. 393 | 5th Cir. | 1901
Lead Opinion
The proceedings to review which these writs of error were sued out were had in an action brought
“In making up your verdict you will find and assess the total amount of damages the plaintiff has sustained, exclusive of reasonable attorney’s fees for services rendered by the plaintiff’s attorneys in preparing for and on the trial of the motions to dissolve the two writs of attachment; and, in addition to the amount so found, you will also find and assess separately such sum of money as, upon the evidence, you believe to be a reasonable compensation for the services rendered by the plaintiff’s attorneys in preparing for the trial and on the trial of the two motions to dissolve the attachments, and in resisting the efforts of the Atlantia, Lumber Company to have the judgment dissolving such attachments reversed in the United States circuit court of appeals and in the supreme court of the United States. The court has prepared the form of your verdict as follows: ‘We, the jury, find for the plaintiff, and assess its actual damages, exclusive of attorney’s fees, at -. And if the court be of the opinion that, as a matter of law, the plaintiff may recover for such attorney’s fees, we further find for the plaintiff for the amount of-as a reasonable and just fee for the services proven.’ ”
Under the foregoing instruction, and other instructions which the court gave, the jury returned a verdict for the plaintiff, assessing its actual damages, exclusive of attorney’s fees, at $10,880; and as to the attorney’s fees the verdict proceeds in these words:
*395 “And if the court be of the opinion that, as a matter of law, the plaintiff may recover for such attorney’s fees, we further find for the plaintiff for the amount of $7,500 as a reasonable and just fee for the services proven.”
On the return of this verdict the plaintiff moved the court to enter judgment in its favor against the defendant for the full amount thereof, including the sum of $7,500 as attorney’s fees for services in obtaining a dissolution of the attachments. After due consideration of the matter, the circuit court refused to enter judgment-on the verdict for $7,500 attorney’s fees, and rendered its judgment in favor of the plaintiff and against the defendant for the sum of $10,895.04 damages, and for costs.
Each of the parties sued out a writ of error. Thirty-seven errors are assigned by the L. BucM & Son Lumber Company on its writ of error, and 89 by the Fidelity & Deposit Company on its writ of error. The respective assignments together fill 27 pages of the printed records. Of these numerous errors thus elaborately assigned we deem it necessary to notice only one (the- thirty-fifth) assigned by the Bueki Company. It is stated in these words:
' “The court erred in excluding from the judgment the sum of $7,500 which the jury found specially in their verdict as a reasonable compensation for plaintiff’s attorneys for services rendered on the trial of and preparing for the trial of the motion to dissolve the attachment. This was error on the following grounds, to wit: (1) Because the amount of reasonable attorney’s fees was an element of damages sustained by the attachments; (2) because it was a question of local law, arising upon a statute of Florida authorizing 'the issue of attachments, and providing the condition of the bond upon which attachments can issue; (31 because the supreme court of Florida had previously decided that reasonable attorney’s fees op such a motion are proper elements of damages, and such decisions of the supreme court of Florida were obligatory upon the federal court.”
The statute of Florida which required the giving- of the bond on which these actions are based fixes the condition of the bond as follows: “Conditioned to pay all costs and damages which the defendant may sustain in consequence of the plaintiff’s improperly suing out said attachment.” Rev. St. 1892, § 1646. The plaintiff in the attachments claimed in the aggregate, and in round numbers, the sum of $85,000, and the writs were so levied as, for a time at least, to stop the operations of a sawmill plant with a capacity of about 100,000 feet of sawed timber and lumber per day. The most vital feature of the levy was the placing of it on the accumulation of logs held on hand to meet the daily consumption of the mill. Of the gravest effect, but somewhat less than that of the levy on the logs, was the levy on the stock of sawed timber and lumber manufactured to meet current contracts. And a very serious effect on the business of the defendant in attachment was the levy of the writs (for so large a claimed indebtedness) on the real estate, including, as it did, the land and fixtures constituting the sawmill plant. The harshness of the use of the extraordinary process of attachment is recognized by the statutes of Florida, which provide that the court to which an attachment is returnable shall always be open for the purpose of hearing and deciding motions to dissolve it. Rev. St. 1892, § 1656. When an attachment is run on property necessary for the conduct of a going business, which
It is stated by counsel that the learned judge who presided at the trial announced that the case of Oelrichs v. Spain, 15 Wall. 211, 21 L. Ed. 43, should be followed. That case has some historic interest on account of the subject-matter of the original bill, and the prominence of several of the actors in the transactions out of which the litigation grew. The immediate case was a suit in equity on a bond or bonds given to procure an injunction which restrained the defendant in the injunction proceedings from drawing money from the federal treasury until the further order of the court. In the case in which the bonds were given no motion was made to dissolve the injunction, and no professional services were rendered in obtaining its dissolution distinct from the services required in the conduct of the proceedings to the hearing and on the hearing of the bill on the merits. The writ was never dissolved until and except by the final decree. The payees in the bonds were largely successful on the merits. Counsel for the defendant in error, in his brief, makes this statement:
“In fifteen states and the territory of New Mexico attorney’s fees are recoverable on attachment bonds; but in six of those, namely, Louisiana, Kentucky, Ohio, Illinois, Minnesota, and New York, they are not recoverable when the defense of the attachment proceedings involved the merits. In two of the states mentioned, namely, Washington and Iowa, the recovery of attorney’s fees on attachment bonds is expressly provided for by statute, and the same may be true of some of the others.”
Counsel for the plaintiff in error, in his brief, states:
“An examination of the text-books and digests of decisions will, we believe, establish that in thirty-eight states of the Union such fees are held a proper element of damages. In the other states the question is controlled by statute, or by antiquated views of public policy.”
The plaintiff in error contends that in this case it is a question of local law; that it arises from the state statute, and could never have arisen if the statute had not required such a bond to be given. In the matter of injunctions to stay proceedings at law the Florida statute provides that, if the application be to stay the proceedings before verdict or jnquest of damages, the applicant must enter into bond conditioned “to pay to the plaintiff all damages, losses, expenses, and charges which he may have sustained or have been put to by reason of the issuing of the injunction if the injunction shall be dissolved, or the. bill upon which it was granted be dis
“Against suck an array and weight of authority as sustain the conclusion of the court, as expressed in Ah Thaie v. Quan Wan, 3 Cal. 216, hi favor of the principle that attorney’s fees aro recoverable in a suit on an injunction bond, we are loath to follow the few authorities that hold the contrary, in the absence of some controlling argument or reason that would convince our judgments of the correctness of these conclusions. The reasons set forth in Oelrichs v. Spain are, to our minds, not satisfactory, and we think are fully answered in the brief of counsel for appellant.”
The case of Gonzales v. Tobacco Co. (Fla.) 26 South. 1012, was a writ of error taken from a judgment of the circuit court of Duval county, Fla,, rendered by a referee in an action at law to recover damages upon an attachment bond executed by Oonzales and two sureties, payable to the tobacco company, conditioned in accord
“The motion for a new trial ought to have been granted. The only evidence relative to damages claimed on account of costs, expenses, and attorney’s fees was the testimony oí T. F. McGourin, a witness for defendant in*399 error [the tobacco company]. Upon his direct examination ho was ashed if the defendant in error had been to any cost and expense in direct consequence of tiie attachment and seizure of the goods. He replied ailirmathely, and gave in detail the following items: Attorney’s fees, $S0; six depositions, at $5 each, $30; six witnesses, at $1.25 each, $7.50; Wolfe’s expenses, $22; McCoiirin’s expenses, $44; total, $183.50. On cross-examination this witness stated that the ’attorney's fees were paid in defense of the main ca.se’; that the depositions were taken to cover testimony that was intended to be used at the hearing of the main ease; ‘that the expenses of Mr. Wolfe were incurred for his presence hero ¡in .lacksonvillei at the time of the main I rial’; that ‘those expenses were incurred at the time that the case was Iried in which Mr. Gonzales was complainant and the He Funiak Tobacco Company was defendant, in which Mi’. Gonzales claimed that an amount was due him on salary.’ In answer to the question, ‘This dismissal of the case was dated'May 25, 1892. Were any of those costs incurred about that timo?’ he said: ‘Yes, sir; I think they were all about that time. I think they were incurred by reason of that suit.’ Although tills witness stated upon direct examination, in a general way, that these fees and expenses were incurred in direct consequence of the attachment of the goods, his cross-examination explained what he meant by that statement, and developed tiie fact that they wore all incurred in defense of the main suit, and not in any proceeding to test the propriety or procure the dissolution of the attachment, thereby fully establishing the truth of one of the pleas then in issue before the referee. There was nothing to contradict the testimony of this witness, and consequently no evidence upon which the referee could properly base a finding for these items. As his finding and judgment clearly embraces them, tiie motion for a new trial was well taken. * * * The condition of the bond is to ‘pay all costs and damages the defendant may sustain in consequence of improperly suing out, said aitachment,’ and this language will not admit of damages for expenses of defending the main suit. By tiie great weight of authority, while attorney’s fees and oilier expenses incurred in relation to the attachment or in relation to procuring its dissolution will be allowed as damages in actions upon attachment bonds, the fees and expenses incurred in defending the principal suit cannot be allowed, in the absence of statute or a stipulation in the bond to that effect. Wittich v. O’Neal, 22 Fla. 592; Drake, Attachm. § 176; Sadler v. Bean, 38 Iowa, 684; Frost v. Jordan, 37 Minn. 544, 36 N. W. 713; Alexander v. Jacoby, 23 Ohio St. 353; Bank v. Wylie, 52 Hun, 146 4 N. Y. Supp. 907; Damron v. Sweetser, 16 Ill. App. 339. ® * * The judgment is reversed, and a new trial granted.”
Referring to this case, the, distinguished counsel for the defendant in error says:
“It appears from "the decision that no motion to dissolve the attachment was made, and that it was only dissolved as a result of a judgment for the defendant in the main action, to which the attachment was ancillary, and it was on tliis ground that a right to recover the fees was denied.”
After quoting the closing paragraph of the foregoing excerpt from (lie opinion, the able counsel says:
“It will he observed that the court viewed the subject of the allowance of attorney’s fees as damages as a question of general jurisprudence, and as one that is to he construed by the rules of decision of the common law; and in this way the case affords light on the subject, and in this way only, for the question now under consideration was not before the court, and what was said on -the subject was merely an expression of opinion as to the weight of authority.”
The language just quoted suggests in a delicate and politic way that the question we are considering was not before the court, and that what was said on that subject was mere dictum. Section 1327 of the Revised Statutes of Florida provides that the judge of the supreme court of this slate delivering the opinion of the court
“(2) Attorney’s fees and other expenses incurred in relation to the attachment, or in procuring its dissolution, are properly allowed as elements of damage in an action upon attachment bonds; but fees and expenses incurred in defending the principal suit cannot be allowed, in the absence of statute or a stipulation in the bond to that effect. (Syllabus by the Court.)”
We do not overlook the case of Hart v. Stribling, 25 Fla. 435, 6 South. 455, in the report of which we find this in the syllabus:
“(1) Under the statute the judges of the supreme court of this state are required, in deciding cases, to prepare and make- a syllabus of the points and principles intended to be decided by the court, which shall be published in the Reports, in lieu of that usually prepared by the reporter. But where a judge who writes the opinion of the court expresses a view upon any point or principle which he is not required to decide, his opinion as to such point or principle is obiter dictum, and it is binding on no one.”
Perhaps an exhaustive practical judicial definition of the much-used and abused term "dictum” cannot be evolved from reported decisions of approved authority* But, accepting the definition expressed in the quotation just made from the syllabus in Hart v. íátribling as sufficient for our present discussion, we submit that it cannot fairly be contended that the judge who wrote the opinion of the court in Gonzales v. Tobacco Co., and who, in obedience to the requirement of the statute, prepared the syllabus of the principles intended to be decided by the court in that case, expressed a view upon any point or principle which he was not required to decide. The allegation in the declaration was sufficient to admit proof of fees paid to an attorney for his services in connection with the attachment and its dissolution, as distinguished from his services in connection with' the action of* assumpsit on which the attachment was grafted. And this allegation is aided by the. plea of the defendant that the attachment was ancillary to a suit in assumpsit) that no trial was had as to the sufficiency of the attachment proceeding) and that all proceedings, costs of court, fees of witnesses, etc., alleged in the declaration, were had and incurred in and about the defense of the suit in assumpsit, to which the attachment was ancillary. The opinion puts emphasis on the fact that the only evidence relative to damages claimed on account of costs, expenses, and attorney’s fees was the testimony of one witne'ss for the defendant in error; and in another place says:
“There was nothing to contradict the testimony of this witness, and, consequently, no evidence upon which the referee could properly base a finding for these items. It does, however, clearly appear from the testimony of this one witness — and that, too, on his cross-examination — that there was a main trial of the case, and that this main trial took place, or at least terminated, on May 25, 1892, as alleged in the declaration.”
It is. also clear, from the opinion, that this issue as to attorney’s fees, being a proper element of damages in the case, was the very
These two writs of error were submitted together and argued together before us nearly a year ago (May 29, 1900), since which time we have held them under examination and advisement, and have given the numerous assignments of error careful and diligent consideration. WTe find that the action of the learned judge who presided at the trial in the circuit court is in sevefal particulars subject to the criticism which is leveled at it by some of the other numerous assignments of error made by the plaintiffs in error on their respective writs; . but, on the fullest consideration of the whole case, we conclude that the record presents no error on the part of the trial judge for which the judgment should be reversed, except the error that we have discussed, and its nature is such that we can and do correct it by amending the judgment as above indicated; and, thus disposing of both writs of error, the judgment of the circuit court is affirmed.
Dissenting Opinion
(dissenting). This action was brought by the t. Bucki & Son Lumber Company, a corporation under the laws of New Jersey, against the Fidelity & Deposit Company of Maryland, a corporation under the laws of Maryland, to recover damages upon two attachment bonds executed by the latter company as surety. For brevity the former company will be called the “Bucki Company,” and the latter the “Fidelity Company.” A brief statement of the facts which led to and are involved in the litigation will be necessary: On the 1st day of October, 1897, the Atlantic Lumber Company sued out a writ of attachment for $9,980.80, and caused it to be levied on the lumber of the Bucki Company, consisting of about 1,250,000 feet. On the same date the Atlantic Lumber Company sued out another writ of attachment against the Bucki Company for $75,000, and caused it to be levied upon about 3,500,000 feet of timber and lumber and 3,000,000 feet of logs in a boom, and on the sawmill plant of the Bucld Company. The sheriff! took possession of the personal property levied on. On the 11th day of October, 1897, the Bucki Company, by executing a forthcoming bond in accordance with section 1852 of the Revised Statutes of Florida, obtained possession of part of the personal property levied on, and on the 4th day of November, 1897, by the execution of a similar forthcoming bond, the Bucki Company obtained possession
Under the laws of Florida no attachments shall issue until the person applying for the same shall enter into bond, with sureties, payable to the defendant in at least double the debt or sum demanded, conditioned to pay all costs and damages which the defendant may sustain in consequence of the plaintiffs improperly suing out the attachment. Rev. St. § 1646. The bonds sued on in this action were given under that statute. The Fidelity Company is a surety on each of the bonds. Each bond has the condition prescribed by the statute “to pay all costs and damages” which the Bucki Company may sustain in consequence of it, the said Atlantic Lumber Company, “improperly suing out said attachment.” The declaration recited the proceedings in the attachment cases, setting out the bonds and writs and levies, and claimed damages for the interruption, suspension, and destruction to the Bucki Company’s business and credit in consequence of such attachments, and also claimed costs and attorney’s fees and expenses incurred in preparing for and on the trial of the motions to dissolve the attachments. The case went to trial on the plea of non damnificatus. and much, evidence was offered relating to the operations of the mill, the amount of lumber sawed, the amount sold, the prices received, and the profits made. Evidence was also offered as to the effect of the attachments upon the credit of the» Bucki Company, and on the question as to whether its credit was good or bad prior to the attachments. Evidence was also offered as to reasonable attorney’s fees for procuring the dissolution of the attachment. The Bucki Company requested the court to charge the jury that it was entitled in this action to recover for the injury to credit and loss of profits in its business. These requests were made in 16 separate charges, which were refused by the court, and the refusal of each is here assigned as error. Two of the requested charges presenting the questions are selected:
(1) “It is a question of fact for you to determine whether or not, if these attachments had not been issued and levied, the plaintiff would have been able to supply its mill with logs, and continued in its business and the amount of profits it would have made in such business in case said attachments had not been issued, provided you believe from the evidence that the direct consequences of such attachment caused the plaintiff to cease continuing in business, and that plaintiff would have and could have continued 'in business if such attachments had not been issued and levied and continued upon plaintiff’s properties.” (2) “If you believe from the .evidence that the issuing and levying of these writs of altachment injured or impaired the credit or financial standing of the plaintiff as it existed on October 1, 1.897, then the plaintiff is entitled to recover such damages for injury to its credit as you find from the evidence the plaintiff sustained as a direct*404 consequence of the issuing and levying of such writs upon the properties of the plaintiff.”
The - evidence tended to show that $7,5*00 would be a reasonable compensation for the attorney for procuring the dissolution of the attachments. The court refused to permit the attorney’s fees to be estimated as a part of the damages, and the Bucki Company reserved an exception. There are other assignments of error by the Bucki Company, but those that are material raise questions that are involved in the assignments -stated. The Fidelity Company also reserved a bill of exceptions. It assigns'that the court erred in giving a number of charges relating to' the business' of the Bucki Company and its interruption by attachment. Two of those charges may be selected as presenting the questions involved:
(1) “Another element of damages claimed by tbe plaintiff is that tbe attachment interrupted its business, and by such interruptions, and the consequences thereof resulting from the attachments, the plaintiff was prevented from sawing and shipping lumber to certain parties in Baltimore, New York, and Boston, which plaintiff agreed to furnish prior to October 1, 1897; that such losses consist of certain amounts the purchasers of the lumber had to pay to supply what they had purchased of plaintiff. The court instructs you that the defendant is liable for all such losses, if any resulted as a direct consequence of the two attachments.” (2) “You are the exclusive judges as to the facts of this- cause. You are the exclusive judges of the amount of damages the plaintiff sustained as the direct and proximate consequence of the issuing and levying of these writs of attachment. These damages consist of two general consequences: First, all moneys paid out and all expenses incurred in and about and attending to the preparation of the trial of the motions to dissolve the attachments and on the trial of such motions which become reasonably necessary as a direct consequence of such attachment; second, all consequential damages, — that is, all damages caused by the interruption of the plaintiff’s business, either by disabling the plaintiff from operating its mill or disabling it to deliver timber and lumber it had agreed to deliver prior to October 1, 1897, — if you believe from the evidence that the direct and proximate effect of such attachments caused such interruption of the plaintiff’s business.”
It is assigned here by tbe Fidelity Company that tbe court erred in giving tbe first charge above stated, and in giving tbe second part of tbe second charge above stated. There was a verdict and judgment for tbe Bucki Company against tbe Fidelity Company for $10,880 damages, exclusive of attorney’s fees, and each party sued out a writ of error.
1. Tbe question as to attorney’s fees will be first considered. In addition to tbe general verdict for tbe plaintiff, tbe jury found a., special verdict as to tbe amount of attorney’s fees. They found that $7,500 would be reasonable and just as attorney’s fees for tbe services rendered in procuring tbe dissolution of tbe attachments. Tbe circuit court held that no judgment should be entered on this part of tbe verdict. Tbe condition of tbe bond sued on is to pay “all costs and damages” which tbe defendant in tbe attachment suit may sustain in consequence of tbe attachment being improperly sued out. Tbe word “costs,” as used in tbe bond, refers, I think, to such costs as the defendant would have tbe right to have taxed in bis favor in tbe attachment proceedings. Tbe word refers to such sums as are prescribed by law as charges for the services enumerated in the feé. bill or .bill of costs. Tbe word. “damages”
“The fees of counsel in prosecuting this case were no part of the consequences naturally resulting from the action of the defendants in suing out the decree and warrant in bankruptcy. They were not what the defendants ought to have foreseen. That such fees are not recoverable, and why they are not, was clearly shown in Good v. Mylin, 8 Pa. 51.”
Mr. Justice Bradley, who had presided on the trial in the lower court/ dissented from the opinion of the court, remarking that the exception in regard to allowing fees in the suit by way of damages was not founded in truth.' The court below, he said, expressly confined the jury to three specific grounds of damage, and this was not one of them. Stewart v. Sonneborn, 98 U. S. 187, 197, 25 L. Ed. 116. The case of Oelrichs v. Spain, 15 Wall. 211, 21 L. Ed. 43, is considered a leading case on this question. It involves the question of the assessment of damages upon the dissolution of an injunction. It was claimed that the enjoined party was entitled to include as damages the counsel fees paid in consequence of an injunction. The court commented on Arcambel v. Wiseman and Day v. Woodworth, supra, and then said:
“The point here in question has never been expressly decided by this court, but it is clearly within the reasoning of the case last referred to, and we think is substantially determined by that adjudication. In debt, covenant, and assumpsit damages are recovered, but counsel fees are never included. So, in equity cases, where tnere is no injunction bond, only the taxable eosts are allowed to the complainants. The same rule is applied to the defendant, however unjust the litigation on the other side, and however large the expensa litis to which he may have been subjected. The parties in this respect are upon a footing of equality. There is no fixed standard by which the honorarium can be measured. Some counsel demand much more than others. Some clients are willing to pay more than others. More counsel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party, there is danger of abuse. A reference to a master, or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted litigation might possibly be more animated and protracted than that in the original cause. It would be an office of some delicacy on the part of the court to scale down the charges, as might sometimes be necessary. We think the principle of disallowance rests on a solid foundation, and that the opposite rule is forbidden by the analogies of the law and sound public policy.”
These authorities seem conclusive of this question, looked at as a question of federal jurisprudence. It is urged, however, that this court should he governed by the statutes and decisions in Florida. We are not cited to any statute of Florida that establishes a rule of damages in cases like this so as to include attorney’s fees. It is provided that an attachment shall not issue until the person applying for it gives a bond conditioned to pay all costs and damages which the defendant may sustain in consequence of the plaintiff’s improperly suing out the attachment. Rev. St. 1892, § 1646. This statute creates no rule as to damages that would include counsel fees. It merely provides for the giving of a statutory recognizance, which is not the foundation of a right of action, but security only for the payment of damages. The damages referred to are such
2. The distinguished counsel for the Bucki Company says that “the court below refused to submit to the jury the question as to how much damages the plaintiff sustained by reason of losses by the interruption and destruction of its business caused by the attachment.” After stating the grounds on which the court based its decision, the learned counsel adds, “This action of the court is assigned as error, and presents the leading and most important question for review in this court.” The question, as presented by the evidence offered, the exceptions reserved, and the errors assigned, is naturally divided into two inquiries: (1) Is the Bucki Company entitled to recover for loss of profits caused by the attachment? (2) Is the Bucki Company entitled to recover for injury to its credit caused by the attachment? - There is seemingly a great deal of conflict in authorities on .these questions. The apparent conflict arises from decisions in jurisdictions controlled by varying statutes, and by the failure to note, in commentaries on them, the difference in the kinds of actions in which the damages are being adjusted. It is important at the outset, therefore, to keep in mind the nature of this suit. It is an action for breach of two attachment bonds. The suit is by the payee of the bonds — the defendant in the attachment suit — against the surety on the bonds. They are statutory bonds, their condition being Axed by statute. The condition of each bond is that the principal shall well and truly “pay all costs and damages” which the payee may sustain in consequence of the principal’s “improperly suing out said attachment.” The suit is not an action on the case against a plaintiff for maliciously suing out an attachment. In the latter case a very different rule as to damages prevails. There is no statute in the state of Florida which makes the obligors on an attachment bond liable in an action on the bond for such damages as the plaintiff is liable for in an action on the case for maliciously and vexatiously suing out an attachment. In states where there are such statutes, they control the decisions of the courts of the states as to the measure of damages. In some of the states the grounds on which an attachment is sued out cannot be traversed, but the defendant may at once sue for damages, and the obligors on the attachment bond are made liable, if the attachment was sued out maliciously, for such damages as the plaintiff in the attachment suit would be liable for in an action on the case for the malicious prosecution of the attachment. In Florida the defendant in the attachment suit may traverse the plaintiff’s affidavit, and move to dissolve the attachment (Rev. St. § 1656), and on its dissolution may sue on the bond, and is entitled to recover only “all costs and damages” which it has sustained from the improper suing out of the attachment. There being no statute otherwise fixing the measure or kind of damages to be recovered, and the bond sued on conforming to the statute, we
The general principles controlling these questions seem to be clearly indicated in the opinions of the supreme court. In Watson v. Sutherland, 5 Wall. 74, 18 L. Ed. 580, the court incidentally discussed the question which, is involved here. It was a suit in equ i ty to enjoin a levy on a miscellaneous stock of goods. The injunction was resisted upon the ground that the defendant had an adequate and complete remedy at law. The court therefore considered the question as to what damages could be recovered at law for the seizure and sale of the goods. The court said it was well settled that “the measure of damages, if the property were not sold, could not extend beyond the injury done to it, or, if sold, to the value of it when taken, with interest from the time of the taking down to the trial.” The court added: “Loss of trade, destruction of credit, and failure of business prospects are collateral or consequential damages, which it is claimed would result from the trespass, hut
“Under tlie decisions to which we have referred, it is evident that in the case at bar the measure of damages,for the detention was interest on the value of the property from the time of the wrong complained of. This rule of damages has been held by this court to be the proper measure, even in an action of trespass for a seizure of personal property, where the facts connected with the seizure did not entitle the plaintiff to a recovery of exemplary damages. An action of this character was the case "of Conard v. Insurance Co., 6 Pet. 262, 8 L. Ed. 392. In the course of the opinion there delivered by Mr. Justice Story, the court held that the trial judge did not err in giving to the jury the following instruction: ‘The general rule of damage is the value of the property taken, with interest from the time of the taking down to the trial. This is generally considered as the extent of the damages sustained, and this is deemed legal compensation with reference solely to the injury done to the property taken, and not to any collateral or consequential damages resulting to the owner by the trespass.’ Indeed, the same rule was, in effect, reiterated in Watson v. Sutherland, 5 Wall. 74, 79, 18 L. Ed. 580, where it was substantially held that ‘loss of trade, destruction of credit, and failure of business prospects’ could not be recovered in an action at law, where malice or bad faith was not an ingredient, because such damages were collateral or consequential, as regards a seizure of personal property, and could only be recovered at law where the issue of bad faith was involved. In other words, that, however at law such damages might be considered, when the suit was based uiDon a malicious trespass they were not a proximate result of an injury to property, caused by an illegal seizure thereof.”
It follows, I think, that the Bucki Company is not entitled to recover in this action for the loss of profits in its business caused by the issuance and levy of the attachment, and that it cannot recover damages in this action for injury to its credit. Pettit v. Mercer, 8 B. Mon. 51; Weeks v. Prescott, 53 Vt. 57, 58; Braunsdorf v. Fellner, 76 Wis. 1, 3, 45 N. W. 97; Crockery Co. v. Haley, 6 Wash. 302, 33 Pac. 650, 653; Kirbs v. Provine, 78 Tex. 353, 14 S. W. 849; Sedg. Dam. (8th Ed.) § 127; Suth. Dam. (2d Ed.) § 55. So far as the levy on the real estate was concerned, it did not operate any change of possession (Rev. St. Fla. § 1651), or cause any damage (Trawick v. Martin-Brown. Co., 79 Tex. 460, 14 S. W. 564; Brandon v. Allen, 28 La. Ann. 60). We have to deal with the measure of damages for the unlawful seizure, without malice, of personal property. Pardee, circuit judge, speaking for this court, said:
“The measure of damage for the unlawful seizure, without malice, of personal property, where the property is subsequently returned to the owner, is the difference between the value of the goods at the time and place of the unlawful taking and at the time and place where returned, in addition to the value of the use during the time of detention.” Coulson v. Bank, 4 C. C. A. 616, 54 Fed. 855, 859.
The supreme court applied this rule in the case of a trespasser. Bates v. Clark, 95 U. S. 204, 24 L. Ed. 471. A surety on an attachment bond, with the condition as in this case, in the absence of
I think that the charges given by the circuit court are not in conformity with the law as held by the supreme court, and that the assignments of error made by the Fidelity Company as to the charges quoted are well taken.