164 Iowa 512 | Iowa | 1914
The action was upon a note for the sum of $400, signed by both defendants, and payable to the plaintiff bank. The defendants admitted the execution of the note, and pleaded tender of the amount due, with interest, attorney’s fees, and costs, to the clerk. The ground for the
The actual damages pleaded were $25 for attorney’s fees in securing the release of the attachment, and $25 for time and trouble in securing the release of the garnishees, so that the actual damages allowed could not have exceeded $50; the remainder of the award to defendants, to wit, $120, being by way of punishment for the wrongful act.
The question of the rightfulness of the attachment was strenuously contested, and plaintiff claimed that in suing out the writ it acted upon the advice of an.attorney before whom it placed ’the entire facts relating to cause for the attachment, and was advised by him that it had good cause for suing out the writ.
Remembering the issue tendered by the counterclaim, it will be observed that the court did not submit the question as to whether or not, after submitting the entire matter to its counsel, it was advised by him that it had good ground for commencing an attachment by reason of the fact that' Lanin was about to convert his property into money for the purpose of placing it beyond the reach of his creditors. This he might have intended, no matter what his financial standing, and under the instruction the plaintiff' could not be relieved from exemplary damages, although it may have placed all the facts relating to Lanin’s purpose to convert his property into money for the purpose of placing it beyond his creditors, and was advised by the attorney that it had good cause for suing out the attachment on this ground.. That Lanin’s financial condition may have been good would not of itself be conclusive upon this subject, and that he had no financial standing would not alone indicate that he was about to convert his property into money for the purpose of placing it beyond the reach of his creditors. In other words, a false issue was raised by this instruction, and, although plaintiff may have proved that after giving all the facts of which it was possessed, regarding defendant’s purposes and intent with reference to' the conversion of his property into-money, and was advised by counsel that it had good ground to commence an attachment suit on that ground alone, still, if it did not give him all the facts regarding Lanin’s financial standing, the jury would not be justified, under this instruction, in relying upon the attorney’s advice. It will be noticed, too, that it was the financial standing of Lanin, and not his. financial condition, which the instruction referred to. In other words, advice of counsel with reference to suing out an attachment on the
If, then, the jury found that the plaintiff did not state all the facts relating to Lanin’s financial reputation or standing, or if it, on the other hand, found that instead of that plaintiff did state all the facts with reference to the disposition Lanin was about to make of his property, to counsel, and was advised by him that grounds for attachment existed, nevertheless it could place no reliance on this advice. In this respect there was error. McKern v. City of Albia, 69 Iowa, 447.
II. The proof of time spent by defendant in securing the release of the attachment was very uncertain and speculative, and that matter should not have been submitted to the jury.
The judgment must be reversed, and the cause remanded. —Reversed and Remanded.