Field v. Munster

• Decision Date: 30 October 1895
• Citation: 32 S.W. 417
• Parties: FIELD v. MUNSTER.
• Court: Texas Court of Appeals

Page 417

32 S.W. 417

FIELD v. MUNSTER.

Court of Civil Appeals of Texas.

October 30, 1895.

Appeal from district court, Caldwell county; H. Teichmueller, Judge.

Action by D. C. Munster against A. F. Field. Judgment for plaintiff. Defendant appeals. Reversed.

L. J. & A. B. Storey, for appellant. Thos. McNeal and Stringfellow & Coopwood, for appellee.

KEY, J.

On the 13th day of November, 1889, appellant, having in his hands, as sheriff of Caldwell county, a valid execution against the Luling Manufacturing Company and J. H. Munster for the sum of $739.73, levied the same upon, seized, and took possession of, a stock of merchandise of the value of $1,293.36; and, on the 27th day of the same month, appellant sold said merchandise at public sale, and appellee, D. C. Munster, became the purchaser thereof for the sum of $725. September 13, 1890, D. C. Munster instituted this suit against Field, alleging a conversion of the merchandise referred to, and praying judgment for its value; and on trial he recovered judgment for $1,293.36, with 6 per cent. from November 13, 1889. Field has appealed.

In ruling on the pleadings, in charging the jury, and in refusing a special charge requested by appellant, the trial court held that, if the property belonged to appellee at the time of its seizure, he was entitled to recover its full market value, with interest; and that the fact that he had bought it in at the sheriff's sale, and recovered possession of it for less than its market value, did not in any wise affect the measure of damages. These rulings are assigned as error.

In the case of Schoolher v. Hutchins, 66 Tex. 324, 1 S. W. 266, Hutchins had been appointed assignee in a statutory assignment. Certain creditors of the assignors caused attachment to be issued and levied upon the assigned property. The property was sold under the attachments, and the assignee bought some of it. He afterwards brought suit, as assignee, against the sheriff who levied the attachments, and the sureties on his official bond, to recover the value of the property levied on, charging a conversion. As bearing on the question now under consideration, and relied on by appellee in support of the ruling of the district judge in this case, we copy from the opinion in that case as follows: "The petition contains all the averments necessary to entitle the assignee to recover for an illegal seizure and conversion of the property which the defendants caused to be taken under their writs of attachment, and subsequently sold as perishable property, under an order of court. That the assignee may have bought a part of the property which the defendants caused to be seized and sold by the sheriff under the order of the court cannot affect either his right to recover or the measure of damages. His rights in these respects were fixed when the property was taken from his possession, and the defendants cannot be heard to assert that their liability or its measure can be made to depend on what subsequently occurred. The defendants illegally seized or caused the goods to be seized, and, if the evidence is entitled to credence, held them for some time before they were sold, and during that time so dealt with them as to greatly depreciate them in value, and now claim that, as the assignee bought some of the goods at the sale, they should only be held responsible for such sum as he paid for them. To entertain such a view of the law would be to hold that the defendants, by their own acts, might cause the property to depreciate in value, and avoid responsibility for such depreciation by returning it to its true owner, who had elected to recover its value at the time it was taken from his possession. If A. should cause the property of B. to be seized and sold for the debt of C., and at such sale B. should become the purchaser of the property for a sum ever so much less than its real value, this certainly would not affect his right to recover from A. the value of his property at the time of seizure, even though, when he recovered it back under the purchase, it was as valuable as when first taken from him. This is not an action to recover the property with damages for its detention, but an action for its value, based on the fact of conversion." As reported, it does not appear exactly how the question in that case arose; and, in order to ascertain that fact, we have examined the original transcript in the supreme court, and the only assignment of error that touches the question, and evidently the one under consideration when the language above quoted was used, in so far as it has any hearing on this subject, reads thus: "The court erred in refusing to grant defendant's motion for a new trial * * * (3) because the evidence shows that J. V. Hutchins, plaintiff herein, after he had accepted the assignment made to him by P. R. Turney & Co., purchased from said sheriff, at the sale of the attached property, a large amount of such attached property, and the jury should have placed on the goods so purchased by said plaintiff no greater value than the amount paid for them by said plaintiff at said sale." In fact, the above quotation from the opinion indicates that the foregoing assignment was under consideration, because it is stated in said quotation that although the defendants in that case had illegally seized the property, and caused it to greatly depreciate in value, they claimed that, as the plaintiff had bought some of the goods at the sheriff's sale, they should only be held responsible for such sum as he paid for them. The court very properly declined to sustain that contention. Such a measure of damages would be manifestly unjust to the owner of the property. It would restore to him the money he had paid out, without interest, and the property wrongfully taken, not as it was when taken, but greatly diminished in value, without any compensation for such depreciation in value. Therefore, while there are expressions in the opinion in that case that cover a wider range, and apply to and support appellee's contention on the question now before this court, they were not necessary to a decision of the question presented and decided, and are but the obiter dicta of the learned judge who wrote the opinion. The case of Hart v. Blum, 76 Tex. 113, 13 S. W. 181, was decided by the commission of appeals, and approved by the supreme court; and, in so far as it bears on the point here involved, it rests upon the dicta in Schoolher v. Hutchins, supra. In neither case are any other authorities discussed or referred to. In so far as the briefs of the parties or our own investigations have disclosed, these are the only cases bearing on the question that have ever been before our supreme court; and for the reasons stated, and as the weight of authority as well as sound principle does not sustain the utterances in those cases which tend to support the rulings under consideration, we do not think the question should be regarded as finally settled in this state, and feel constrained to decide the question as we think it should be decided.

The purpose of the law in awarding actual damages is to repair the wrong that has been done,—to compensate for the injury inflicted, —but not to impose a penalty. Any method that will afford the injured party more than just and reasonable compensation is not the correct measure of actual damages, whether the injury be the result of a willful wrong or an honest mistake. Actual or compensatory damages are not dependent on nor graded by the intent with which the wrongful act is done, while, in many cases, intent is an important factor in measuring exemplary damages; and, in determining the extent of the plaintiff's injury and the amount of actual damage, there is no inflexible rule of law that limits the inquiry to the exact time that the tort was committed. Conditions arising thereafter, and which might reasonably be expected, may increase the extent of the original injury, while, on the other hand, entire or partial reparation may be made; and, in cases of conversion, the owner may voluntarily regain possession of his property before trial, or even before suit is brought. Suppose the property of A. is converted on Monday, is restored and voluntarily accepted by him on Tuesday, in as good condition and worth as much as when converted, and suit is thereafter instituted to recover damages for the conversion of the property; will it require a sum of money equal to the value of the property to compensate A. for the injury he has sustained? Certainly not. In such a case, compensation for the loss of the use of the property during the time it is withheld from the owner, and reimbursement for whatever sum, if any, he may pay out to recover the property, will, in the absence of proof of other damages, afford ample compensation for the injury done.

Take the case now in hand. The property levied on was worth $1,293.36. It was held 14 days, and sold by the sheriff. Except the fact that it sold at sheriff's sale for only $725, there is no evidence that it had depreciated any in value. The plaintiff attended the sale, and bought it in for $725. So, in two weeks after the property was taken, he voluntarily regained possession of it by paying out $725. Under these facts, will it require $1,293.36 and interest to compensate the plaintiff for his actual loss? He has the property alleged to have been converted. Apparently it is worth about as much as when converted; and, to regain it, he has been compelled to pay out only $725. Now, if the defendant be required to pay the plaintiff nearly double the amount it has cost him to regain his property, will he not be condemned, under the guise of actual damages, to pay the plaintiff several hundred dollars more than the testimony shows his loss to be? With these remarks, we turn to an examination of the authorities bearing on the question.

In treating the subject of conversion, Mr. Sutherland says: "If the case is such that the...