161 Mass. 571 | Mass. | 1894
The defendant contends that there was error in the admission and exclusion of evidence, and also in the instruction that, if the attorney acted maliciously when the matter was left with him for the purpose of bringing suit, the defendant was responsible for the malicious acts of his attorney in levying the excessive attachment, and must respond in damages in the same way as if the malice had been that of his own personal creation and exertion.
2. Evidence was admitted, subject to the defendant’s exception, that inquiries about the attachment were made of the plaintiff by mercantile agency reporters and by people who sold him goods; also evidence of conversations of neighbors with the superintendent of the plaintiff’s store, and inquiries by them and by the employees as to what the attachment meant; also of the fact that a creditor attempted to collect through a lawyer a debt of which payment had been remitted to the creditor on the day it was due; also a copy of The Banker and Tradesman, a mercantile paper, containing a notice of the attachment, with evidence of the circulation of that paper ; and also evidence of the reports of commercial and trade agencies as to the attachment. Speaking generally of the evidence so admitted, all ,the circumstances which it tended to show were natural and probable consequences to be reasonably expected to result from the defendant’s act in making the excessive attachment, and tending to prove damage resulting in an injury to his business. None of the acts appear to have been wrongful acts of third persons, •and it is not necessary to consider what difference it would have made if the acts shown as tending to prove loss of credit or injury to trade had been wrongful acts of others. See Hayes v. Hyde Park, 153 Mass. 514, 516, and cases cited; Elmer v. Fessenden, 151 Mass. 359, 362, 363. If The Banker and Tradesman, and the agency reports had been inadmissible for any purpose, the fair construction of that part of the charge which forbade the jury to allow damages for any acts giving currency to the fact that an excessive attachment had been made if such acts were not authorized by the defendant, as no request for a specific withdrawal of the evidence was made, is that the evidence was itself understood to have been withdrawn from their consideration.
3. In that ^branch of the case bearing particularly on the amount of the plaintiff’s damages, we think there was error in
In the first place, the field of inquiry thus opened is so broad as to make it reasonably certain that the circumstance of a constant increase in the volume of trade during the nine years when additional stores and departments were brought into the business must have been due in great part to causes which the attachment could not affect. To put upon the defendant the burden of identifying such causes, and showing to what the increase in remote years was due, was unreasonable. In the next place, the decrease in the volume of business after the attachment does not seem to be a natural and probable consequence of the excessive attachment, which had no natural tendency to drive away purchasers, as it was made on the 12th and dissolved on the 14th day of February, and which never closed the plaintiff’s stores or stopped trade in them. The connection between the supposed cause and the result is not sufficiently close, and too many other elements enter into the matter; for example, the methods of business pursued before and after the attachment, the amount of advertising done, changes in clerks and other employees, the amount of pains and attention given to the business, and the state of trade in general. It is inconceivable that a prosperous business
There was also error in allowing the plaintiff to testify that the amount of the attachment was the cause of the pneumonia with which he was attacked upon the conclusion of a journey from New Jersey to Boston, made four days after the attachment had been dissolved. If that disease can be in any way shown to be a natural and probable consequence of the making of an excessive attachment of goods, a point upon which we express no opinion, it cannot be so shown by the testimony of one who has no special knowledge of the subject.
Exceptions sustained.
The plaintiff offered in evidence at the trial the writ in the suit of Wilbur P. Rice v. William H. Zinn, dated February 7, 1889, in which the ad damnum was laid at $40,000, and the return of service thereon, from which it appeared that on February 9 the defendant Zinn’s real estate in Middlesex and Suffolk counties was attached, and that on February 12 an attachment was placed on the stock of goods in his store on Washington Street, Boston. On February 13, on application to the Superior Court, the attachment was ordered to be reduced to $10,000, in which sum a bond with sureties was given on the same day. Zinn had no real estate in Suffolk County, but owned the equity in certain land and buildings in Somerville.
The officer who made the attachment in Zinn’s store left in charge a
The attachment was removed on the morning of the 14th. No declaration was inserted in the writ when delivered to the officer for service, but the same was subsequently filed when the case was entered in court. The declaration alleged a breach of contract by Zinn in failing to pay a balance due Rice for the construction of ten houses in Somerville, for the sum of $22,250, the balance claimed to be due under the contract and for extras, being about $4,300.