40 Mich. 42 | Mich. | 1879
The grievance alleged by the plaintiff in this case is that the defendant took from his possession his crop of wheat, then harvested and in the mow in his barn, and proceeded to thresh the same with an imperfect machine, whereby much of it was wasted, and that he carried away the remainder without leaving sufficient for six months’ provision for the plaintiff and his family. When the proof was introduced it appeared that the alleged wrong was the act of one Montague, a deputy of the defendant, who was then sheriff of the county of Kalamazoo, and that what Montague did was under the
Two questions of fact and one of law were contested on the trial. The questions of fact were whether the wheat was wasted in threshing, and whether the defendant was allowed his statutory exemption of sufficient of the wheat for the provision of his family for six months. Both of these were submitted by the circuit judge to the jury, and were found against the plaintiff.
The question of law was whether Montague had a right to thresh the wheat at all. Montague claimed a right to thresh it under his discretionary authority to put it in the best condition for sale before exposing it at auction under his execution. It appeared that after he threshed it he did sell it at public auction and apply the proceeds.
It is conceded that the officer has a large discretion in determining the time, place and manner in which he shall offer for. sale the property levied upon by him; but there is no authority for saying, that he may levy on wheat in the mow and proceed to fit it for market before disposing of it under the command of his writ. One reason is that it cannot be supposed necessary; for the value of grain in the sheaf can be estimated with a reasonable degree of accuracy, and the parties concerned are as likely to' gain as to lose by exposing it to sale in that condition. But a more important reason is, that the power to proceed and expend money in threshing the grain at the debtor’s expense is one liable to great abuses, and cannot be admitted without conceding the principle that the officer may go as far as he may deem important
It is said for the defense that it is conceivable that circumstances may arise which would render threshing necessary; and this being so, the discretion to act in the possible emergency must be admitted; and if once admitted, it must be supposed that the officer found such a necessity in this case. But we are-not prepared to admit either the premise or the conclusion. When circumstances arise which make the case so very extraordinary, we think the officer must show them. General rules cannot be made for unexpected and wholly exceptional cases.
The plaintiff claimed that the defendant wholly lost the protection of his writ when he proceeded to an unauthorized sale. This position goes to the question of damages only, and must be left to the jury. Though the threshing was a technical trespass, we do not think the jury are under obligation to award to the plaintiff more damages than-he has suffered merely because the officer in good faith has exceeded his authority. If they believe the officer has acted in bad faith, they will no doubt award damages with that fact in view.
It is suggested by counsel for defendant in error that, admitting his liability, the cause of action must arise in favor of the plaintiff in execution, and not in favor of this plaintiff, since presumptively it must be the former who must lose by any sacrifice of property in bringing about a sale. Possibly the plaintiff in execution 'might have a right of action for such a sacrifice if
The judgment must be reversed, with costs, and a new trial ordered.