Gonzales v. De Funiak Havana Tobacco Co.

• Court: Florida Supreme Court
• Writing for the Court: CARTER, J.
• Citation: Gonzales v. De Funiak Havana Tobacco Co., 41 Fla. 471, 26 So. 1012 (Fla. 1899)
• Decision Date: 06 December 1899
• Parties: GONZALES et al. v. DE FUNIAK HAVANA TOBACCO CO.

26 So. 1012

41 Fla. 471

GONZALES et al. v. DE FUNIAK HAVANA TOBACCO CO.

Florida Supreme Court

December 6, 1899

Error to circuit court, Duval county; William B. Young, Referee.

Action by Frederick A. Gonzales and others against the De Funiak Havana Tobacco Company. Judgment for defendant, and plaintiffs bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. A plea of set-off must describe the debt intended to be set off with the same certainty as in a declaration for the like demand.

2. Attorney's fees and other expenses incurred in relation to the attachment, or in procuring its dissolution, are properly allowed as elements of damage in actions upon attachment bonds; but fees and expenses incurred in defending the principal suit cannot be allowed in the absence of statute, or a stipulation in the bond to that effect.

COUNSEL Walker & L'Engle, for plaintiffs in error.

J. C Cooper, for defendant in error.

OPINION

CARTER J.

This writ of error is taken from a judgment of the circuit court of Duval county, rendered by a referee, June 28, 1894, in an action at law to recover damages upon an attachment bond executed by Frederick A. Gonzales as principal, and Harry Mason and Charles Blum as sureties, payable to defendant in error, conditioned, in accordance with the requirements of the statute, to 'well and truly pay all costs and damages the defendant may sustain in consequence of improperly suing out' a certain attachment against the goods and chattels of defendant in error by Gonzales. The declaration alleged the giving of the bond; the condition thereof; that the attachment was shown and proven to have been improperly sued out by the result of a trial had May 25, 1892, when Gonzales had to dismiss, and did dismiss, his suit on which said attachment was grafted, and with which it was connected, a part and parcel thereof; and claimed, as damages sustained in consequence of improperly suing out the attachment, among other things, certain sums for attorney's fees and costs and expenses incurred by defendant in error. Gonzales filed a plea alleging 'that the plaintiff was, before and at the time of the commencement of this suit, and still is, indebted to him, the defendant in the sum of five hundred and sixty-two dollars, together with interest thereon from June 30, A. D. 1891, as follows Salary due from first week in December, 1890, to January 1, 1891, $75; salary from January 1, 1891, to June 30, 1891, $300; balance due on business trip to Cuba, $75; expenses for moving from Jacksonville to De Funiak, $105; 400 cigar-box labels, at $1.75 per hundred, $7,--which said sums of money so due from the plaintiff to this defendant, as aforesaid, exceeds the damages sustained by the plaintiff by reason of the suing out the attachment mentioned in its said declaration, and out of which said sums of money the defendant is ready and willing, and hereby offers, to set off and allow to the plaintiff the full amount of its damages suffered as aforesaid.' A demurrer to this plea was sustained. The matters of law noted for argument on the margin of the demurrer were--First, one of several defendants cannot set off a debt due him alone from the plaintiff against a joint, or a joint and several, debt; second, the items enumerated and set forth in the plea as offsets to plaintiff's damages are stated too vaguely and generally for plaintiff to reply unto. Other pleas were subsequently filed, upon which issue was joined, one of which alleged that the attachment proceeding in which the bond sued upon was given was ancillary to a suit in assumpsit; that no trial was had as to the sufficiency of the attachment proceeding, but that all proceedings, attorney's fees, costs of court, fees of witnesses, etc., alleged in the declaration, were had and incurred in and about the defense of the suit in assumpsit, as to which the attachment was ancillary.

The record here does not show whether the principal suit was begun by the attachment, or whether the latter was sued out after the institution of the former. The writ was levied upon certain cigars and tobacco belonging to defendant in error which remained in the hands of the officer for about 10 months, when, on motion of Gonzales, the principal suit was dismissed, at his cost, with an order to the officer to deliver the attached property to defendant in error. From the evidence it appears that a motion to dissolve the attachment was filed, but the grounds of this motion are not stated, nor does it appear that any expenses or attorney's fees were incurred in relation thereto. From the record it appears that the attachment was ipso facto dissolved by the dismissal of the principal suit, and that the dismissal of the latter was a voluntary act on the part of Gonzales. The referee found that the value of the goods attached was $750; that they were not materially damaged between the time of their seizure and the delivery to defendant in error, on May 25, 1892; that the measure of damages to be recovered by defendant in error was the interest on the value of the goods for the time they were in the custody of the sheriff, and costs and expenses, including attorney's fees, of procuring the release of the property from the attachment; and rendered judgment against plaintiffs in error for $233.50. The latter moved for a new trial on several grounds, one being that it was error to charge them with liability on...