Cramer v. Oppenstein

• Decision Date: 14 September 1891
• Citation: 27 P. 716,16 Colo. 504
• Parties: CRAMER, Sheriff, v. OPPENSTEIN.
• Court: Colorado Supreme Court

27 P. 716

16 Colo. 504

CRAMER, Sheriff, v. OPPENSTEIN.

Supreme Court of Colorado

September 14, 1891

Appeal from superior court of Denver; MERRICK A. ROGERS, Judge.

Action by Abraham Oppenstein against Frederick Cramer, sheriff, to recover money alleged to have been unlawfully retained. Judgment for plaintiff. Defendant appeals. Affirmed. Affirmed.

This suit arises out of the same transaction as the preceding case between the same parties, decided at this sitting of the court. 27 P. 713. At the execution sale the merchandise belonging to the Oppenstein stock was sold in bulk for the gross sum of $8,000. The fixtures were sold to other parties for about $139.25. After the merchandise was thus sold, paid for, and possession taken, the purchaser claimed $537 as a rebate, on the ground that there was a shortage in the goods delivered as compared with the inventory under which he purchased. The officer who made the sale paid the rebate as claimed, and thereupon made return that he had received only $7,602.25 as the gross proceeds of the sale of the merchandise and fixtures. As appears by the preceding case Oppenstein, by settling with his creditors, became entitled to receive the proceeds of the execution sale. He brings this action against the sheriff to recover the difference between the amount originally bid and paid for the property and the amount returned as the gross proceeds of the sale; in other words, for the amount repaid as a rebate. The cause was tried by the court without a jury, and resulted in a finding and judgment in favor of plaintiff for the full amount of his claim, with interest. The defendant appeals to this court.

Syllabus by the Court

1. In seizing and selling property upon execution, the sheriff is bound to pursue with diligence the course prescribed by law with the view to promote the interests of all parties. He may exercise considerable discretion, for which he will not be held liable so long as he acts in perfect good faith, and keeps within legitimate limits; but he cannot safely disregard reasonable business-like requirements.

2. It is negligence for the sheriff to sell a large amount of miscellaneous merchandise upon an advertised list which he knows to be defective, without ascertaining and making known to the bidders the extent of the discrepancy. Agreeing to make a rebate in proportion to the shortage does not excuse such negligence, and paying a rebate upon the uncorroborated claim of the purchaser, without any evidence as to the character and amount of the alleged shortage, is still greater negligence.

3. It is the duty of the sheriff to sell for cash. He is not at liberty to make a conditional sale upon his own responsibility; and where he accepts negotiable paper in payment, and makes a delivery of the goods, the execution debtor is entitled to treat the reception of such paper as a cash payment.

4. Duplicate statements for the same cause of action are not absolutely prohibited by the Code; they are sometimes permissible,--as where the party cannot reasonable anticipate the evidence, so as to safely go to trial upon a single statement.

5. When the complaint contains three statements of the same cause of action it is not error to deny a motion to strike out the first and second, though a motion to require the plaintiff to elect which cause or causes of action he would rely on, and that the residue be struck out, might be granted in whole or in part.

L. B. France, for appellant.

Sullivan & May, for appellee.

ELLIOTT J., ( after stating the facts.)

There is very little controversy as to the facts of this case. Under the assignment of errors the principal question to be determined is whether or not the finding of the trial court was warranted by the law under the evidence submitted. In seizing and selling property upon execution the sheriff does not act as an agent selected by the execution debtor. As to the debtor the proceeding is adverse; it is in invitum. The sheriff derives his authority directly from the law by virtue of the process in his hands, and not from the owner of the property. In executing his writ he is bound to pursue the course prescribed by law, and to act at all times with reasonable diligence with the view to promote, as far as he can justly do so, the interests of all parties to the proceeding. In the discharge of such duties he may, and often must, exercise considerable discretion as to details, for which he will not be held liable so long as he acts in perfect good faith and keeps substantially within legitimate limits; but if he would make sure of escaping liability he cannot disregard common prudence and reasonable business-like requirements. Murfree, Sher. §§ 990, 996, 1078; Binmore, Sher. § 177.

Upon a careful examination of the evidence we are forced to the conclusion that the proceedings complained of in this case were of the most negligent character. The under-sheriff who conducted the execution sale testifies that he knew the advertised list or inventory was erroneous before the sale commenced. He does not show to what extent the inventory was erroneous. His testimony upon that point is: 'At that sale all the goods levied upon under that execution were sold. The goods fell short of the advertised inventory. I did not have all the goods advertised. The discrepancy occurred in this way: In making out the list for the printer in several cases they made '6-12 of a dozen,' '7-12 of a dozen,' '5-12 of a dozen,' and the printer got it in at '6 dozen,' '5 dozen,' '4 dozen;' and until the morning of the sale the discrepancy was not discovered.' The goods consisted of a large stock of merchandise, such as boots, shoes, clothing gentlemen's furnishing goods, etc. It nowhere appears in the testimony whether the 'dozens' which the officer claims were erroneously advertised were common muslin neckties, worth twenty-five cents a dozen, or expensive boots and shoes, worth fifty or a hundred dollars per dozen pairs, or other articles more or less expensive. Notwithstanding the officer knew of this alleged discrepancy, he proceeded to sell the goods in bulk, making, as he testified, public announcement in a loud tone, so that all could hear, at the commencement of the vendue, as follows: 'We sell these goods to check out according to the advertised list. If there is a shortage, there will be a rebate made in the ratio of the sale of the goods, the whole, as to the amount.' The testimony of the officer concerning this announcement is not altogether corroborated. Other witnesses testified that the announcement was to the effect, 'We offer the following goods for sale,' and that the advertised list was then read. It makes but little difference which form of announcement was used. The legal effect was practically the same, considering how the goods were sold, and especially considering how they were delivered, and how the rebate was claimed and paid. With the exception of the fixtures, the goods were all sold in bulk for the gross sum of $8,000. Several responsible parties made bids,--one bidding $7,850, another $7,900. It was unquestionably very negligent for the officer to sell a large amount of miscellaneous merchandise upon an advertised list which he knew was defective, without ascertaining and making known to the bidders the extent...