Hurlbut, Hess & Co. v. Hardenbrook

• Decision Date: 25 May 1892
• Citation: 52 N.W. 510,85 Iowa 606
• Court: Iowa Supreme Court
• Parties: HURLBUT, HESS & CO. v. HARDENBROOK.

85 Iowa 606

52 N.W. 510

HURLBUT, HESS & CO.

v.HARDENBROOK.

Supreme Court of Iowa.

May 25, 1892.

Appeal from district court, Audubon county; N. W. MACY, Judge.Nash, Phelps & Green, for appellant.

I. L. Statzell and J. M. Griggs, for appellee.

KINNE, J.

1. This is an action on an account, and also on certain notes against defendant, in which an attachment was issued, and a levy made on defendant's stock of goods and building in which they were situated. The notes were not due when the suit was commenced. The grounds alleged for an attachment were as follows: “That defendant is about to remove from the state, and refuses to make any arrangement for securing the payment of said notes when they fall due, which contemplated removal was not known to the plaintiff herein at the time said debt was contracted, or at the time said notes were executed.” “The defendant is about to remove permanently out of the state, and refuses to pay or secure the debt due the plaintiff.” The petition contained the other necessary averments. Defendant admitted the execution of the notes, that they had not been paid, that the account declared upon was just, that the plaintiff was a corporation; and denied all other allegations of the petition. By way of counterclaim on the attachment bond he set out the attachment and levy, the bond, its condition and breaches. He averred that the grounds alleged for the issuance of the attachment were untrue, and that plaintiff had no reasonable ground for believing the same to be true; that the writ was wrongfully and maliciously sued out; and asked damages in the sum of $5,000. In an amendment he itemizes his damages, which covered attorneys' fees, depreciation in value of his goods, rental value of store building, loss of employment for himself and clerk, expenses incurred in attendance at court, and costs incurred by reason of the wrongful suing out of the writ. Plaintiff, replying, admitted issuance of writ and levy thereunder on the goods; also that the grounds for the issuance of the writ were as alleged; that it filed the bond; that the damages claimed were not paid; and denied all other allegations in the counterclaim. After the issues were formed the defendant paid plaintiff's claim, and the case was tried only on the issues as presented by the counterclaim, and a verdict rendered for defendant for $470. The court required defendant to remit all of the verdict in excess of $350, overruled the motion for a new trial, and entered a judgment on the verdict for $350, from which plaintiff appeals.

2. It is said that the court erred in admitting evidence as to the rental value of defendant's building, and in instructing the jury that defendant could recover therefor. It appears that no direction was given to the sheriff to levy on defendant's building, but he did levy on both stock and building, and kept the goods in said building from December 12, 1889, to February 7, 1890. During said time the building was kept locked, defendant excluded therefrom, and the sheriff had the key. We do not feel called upon to determine as to whether the plaintiff would be liable for the unauthorized levy by the sheriff on defendant's building, nor as to its liability for the rental value of the building under the circumstances, for reasons hereafter stated. The court, on entering the judgment, found “that the evidence on the part of the defendant is insufficient to show the occupancy of the building by the officer under the writ of attachment herein was not with the voluntary consent of the defendant, or that it was necessary to preserve and protect the stock of goods therein levied upon, and that the defendant is not, therefore, entitled to recover for the rental value of said building during the term it was so occupied.” The court required defendant to remit the value of the rent, and $70 in addition, and rendered a judgment for the balance. Under these circumstances, even if it be conceded that the court erred in admitting the testimony relating to rent, and in instructing the jury that they might allow therefor, still it could have worked no prejudice to the plaintiff, as the amount remitted was greatly in excess of the rental value of the...