Dorr Cattle Co. v. Des Moines Nat. Bank

• Decision Date: 18 March 1904
• Citation: 98 N.W. 918,127 Iowa 153
• Parties: DORR CATTLE COMPANY v. DES MOINES NATIONAL BANK, Appellant
• Court: Iowa Supreme Court

98 N.W. 918

127 Iowa 153

DORR CATTLE COMPANY v. DES MOINES NATIONAL BANK, Appellant

Supreme Court of Iowa, Des Moines

March 18, 1904

TUESDAY MARCH 14, 1905.

Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.

ACTION for damages alleged to have resulted from the suing out and levy of a writ of attachment. Judgment was entered on a verdict for the plaintiff, from which defendant appeals.

Reversed.

Chas L. Powell and Read & Read, for appellant.

Bowen & Brockett, Clark & McLaughlin, and Carr, Hewett, Parker & Wright, for appellee.

LADD J. BISHOP, J., took no part.

OPINION

LADD, J.

In this action the plaintiff demands damages to credit alleged to have been caused by the malicious prosecution of attachment proceedings in Cook county, Ill. It appears that the Dorr Cattle Company, incorporated in this State in 1891, had acquired 1,030 acres of land in Calhoun county, and was extensively engaged in handling and feeding cattle for the Chicago market. Large amounts of money were required in carrying on the enterprise, and it became indebted to the Des Moines National Bank for over $ 37,000. Of this about $ 30,000 was secured by a mortgage on the land, upon part of which there was a prior mortgage of $ 5,000. The remaining $ 7,000, in two notes, was unsecured. All of the indebtedness was overdue, and as early as August, 1899, Reynolds, the president of the Des Moines National Bank, had advised J. W. Dorr, the secretary and manager of the company, that the entire indebtedness must be paid within a short time. It seems to have been understood that the company's only resource for this purpose was the land, and Dorr made some effort to dispose of it, but without success. Negotiations were then begun with the view of satisfying the debt by a transfer of land to the bank. These continued until December 22d, and in the morning of December 28, 1899, the bank began suit in Cook county on one of the notes, amounting to $ 6,557, and caused Clay, Robinson & Co., of Chicago, to whom, as consignee, the company had shipped eight car loads of cattle the night previous, to be attached as garnishee. The ground of suing out the writ was the nonresidence of defendant, and, as this was true, it was conceded that, unless something was owing the bank on the note, this action cannot be maintained. The determination of this question necessarily depends on whether a transfer of the land to the bank in satisfaction of the company's indebtedness had then been consummated. On this issue the evidence is in sharp conflict. Dorr testified that on December 22, 1899, Reynolds informed him that the bank would take the land at the price demanded, $ 45,200, and wished the deal closed; that a blank deed was then prepared at the instance of Reynolds, and an understanding had that Dorr should have it properly executed by the officers of the company, and delivered to James Watt for the bank the same evening, or the morning following; and that the deed was executed and delivered in pursuance of this understanding. Reynolds denied having ever made any offer save to take the land for the debt due the bank, and testified that nothing was ever said concerning the delivery of a deed to Watt or any one else. Each is somewhat corroborated. It is enough to say, without reviewing the evidence, that it was such that the jury might have found the facts as testified by Dorr.

But appellant insists that even under Dorr's testimony the deed was placed in Watt's hands to be delivered to the bank on the condition that it first pay him the difference between the price of the land and the debt of the company. Doubtless the jury might have so found, but the court instructed that there could be no recovery unless Dorr "gave such deed to Watt, and it was delivered accompanied with such words or acts as to show an intention on the part of Dorr to surrender dominion over the deed, and that the same should be by said Watt turned over to the defendant upon its request." Under this charge the jury must have concluded that the deed was delivered to Watt for the bank unconditionally. The testimony of Dorr was open to this construction, and this was not necessarily obviated by the mere fact that Watt was to make computation of the amount due the bank.

It will be noticed that not only the agreement to sell, but also the evidence of the designation of a person to receive the deed, was oral, and appellant insists that both are within the statute of frauds. This involves the assumption that the arrangement for the delivery of the deed was a part of the contract of sale. The delivery of a conveyance to an authorized agent is quite as effective as to the purchaser himself. See Ashford v. Prewitt, 102 Ala. 564 (14 So. 663); Duncan v. Pope, 47 Ga. 445; 11 Am. & Eng. Enc. of Law (2d Ed.) 339. And there is nothing in the statute requiring the appointment of such an agent to be in writing. The bank of necessity acted through agents, and it was competent for it to designate any one it might choose to receive the deed. Up to that point neither party was bound, for the agreement, if any, had not been reduced to writing. Nevertheless they had the right to carry it out, and to do so in their own way. The statute of frauds does not undertake to regulate the manner of executing contracts when made, nor does it have any concern with them after being executed. All that remained to be done was to so deliver the deed as to convey the land in satisfaction of the debt. Both said, according to Dorr, that delivery to Watt for the bank should have this effect. When that was done, if ever, the contract was executed. True, the deed did not bear a revenue stamp, but this, in the absence of fraud, did not affect its validity. Harvey v. Wieland, 115 Iowa 564, 88 N.W. 1077; Mitchell v. Ins. Co., 32 Iowa 421; 24 Am. & Eng. Enc. of Law, 935.

II. The court instructed the jury that, if the note had been paid in the manner before mentioned, the defendant, in suing out the writ, acted without probable cause. This is conceded to be the rule in action on the bond. Young v. Broadbent, 23 Iowa 539; Porter v. Wilson, 4 Greene 314. When not on the bond, such an inference is not necessarily to be drawn. Smeaton v. Cole, 120 Iowa 368, 94 N.W. 909. A party may have a reasonable cause to believe another indebted to him, though on the trial it turn out otherwise. But instructions are always to be considered in connection with the facts of the case. If Reynolds and Dorr made the agreement as alleged by plaintiff, both knew that Dorr was to leave the deed with Watt for the bank, and the latter was charged with notice when it was so delivered in pursuance of contract. The bank then had actual knowledge of the facts as they then were. The question was one of veracity. If the transaction was as contended by the company, the bank had no cause for thinking anything was due it; if as testified by Reynolds, a verdict for defendant was directed. There was no middle ground, and the court rightly instructed that, if there was no indebtedness, the action was without probable cause.

III. Again, the instruction on the advice of counsel is criticised as defective in limiting the consideration of it to the issue as to whether defendant was actuated by malice, and in requiring all the facts to be stated to counsel. Only those of which a party had knowledge, or might have ascertained by reasonable diligence, need be disclosed. Parker v. Parker, 102 Iowa 500, 71 N.W. 421. When liability is doubtful, or depends on a construction of law, the opinion of counsel may also be considered by a litigant in deciding whether anything is due him. Indeed, it may be the controlling consideration in his decision to institute proceedings. That such advice may be taken into consideration as bearing on the probable cause was recognized in McAllister v. Johnson, 108 Iowa 42, 78 N.W. 790. But we do not think the advice of counsel could have had any bearing in this case. If the transaction was as plaintiff contended, the defendant did not disclose the controlling facts within its knowledge to its attorney, and his advice on a false statement was wholly immaterial. If no agreement was reached, and no deed was to be delivered, as the attorney was told, the debt was unimpaired, and he rightly advised that the bank might procure a writ of attachment on the ground of the cattle company's nonresidence. In such event a finding for the defendant was directed by the court.

IV. The garnishee held a chattel mortgage on all the cattle shipped by the Dorr Cattle Company, and the proceeds of their sale was not enough to satisfy the debt. Appellant insists that as the writ of attachment interfered with no property rights of plaintiff, it cannot recover. This is true where no special injury has resulted from the unlawful use of the process of the court. "The gravamen of action," as was said in Noonan v. Orton, 30 Wis. 356, "is whether the plaintiff has improperly been made the subject of legal process to his damage." The rule was thus laid down in Wetmore v. Mellinger, 64 Iowa 741, 18 N.W. 870. "We think the doctrine is well established by the great preponderance of authority that no action will lie for the institution and prosecution of a civil action with malice and without probable cause, where there has been no arrest of the person or seizure of the property of defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action." See, also, Smith v. Mich. Buggy Co., 175 Ill. 619 (51 N.E. 569, 67 Am. St. Rep. 242); Brand v. Hinchman, 68 Mich. 590 (36 N.W. 664, 13 Am. St. Rep. 362); Eickhoff v. Fidelity & Casualty Co., 74 Minn. 139 (76 N.W. 1030). In any event, the writ was levied, and, if sued out...