Int'l Harvester Co. of Am. v. Iowa Hardware Co.

• Decision Date: 27 October 1909
• Citation: 122 N.W. 951,146 Iowa 172
• Parties: INTERNATIONAL HARVESTER CO. OF AMERICA v. IOWA HARDWARE CO. ET AL.
• Court: Iowa Supreme Court

146 Iowa 172

122 N.W. 951

INTERNATIONAL HARVESTER CO. OF AMERICA

v.IOWA HARDWARE CO. ET AL.

Supreme Court of Iowa.

Oct. 27, 1909.

Appeal from District Court, Clarke County; H. K. Evans, Judge.

Action to recover on promissory notes and for an attachment. Defendant admitted liability to the amount of the notes and interest, but interposed a counterclaim for damages for a wrongful suing out of the attachment. There was a verdict for plaintiff in the amount of the claim sued on less $540, allowed defendant by way of damages for the wrongful attachment, and the court allowed by way of costs to defendant $300 as attorney's fees. From a judgment on this verdict, the plaintiff appeals. Affirmed.Temple & Temple, for appellant.

O. M. Slaymaker and J. H. Jamison, for appellees.

McCLAIN, J.

It appears that at the time plaintiff instituted this action defendant was indebted to it on various notes in the aggregate sum of about $2,400, of which only about $600 of indebtedness was matured. The ground of attachment relied upon in this court by appellant as having been established by the evidence was that defendant had disposed of its property in whole or part with intent to defraud its creditors.

1. Plaintiff's attachment was levied upon defendant's stock of goods, and the sheriff took possession thereof on Saturday afternoon, and the levy was released by the execution of a delivery bond by plaintiff before noon of the following Monday, and the actual damages shown by defendant recoverable in an action on the attachment bond did not exceed $40, so that it is apparent the jury allowed at least $500 by way of exemplary damages, which, under the instructions of the court given in accordance with the provisions of Code, § 3885, could only be allowed if it was shown that the attachment was not only wrongful, but also maliciously sued out. It is the contention of appellant, stated in different ways, that there was no evidence of a wrongful suing out of the attachment, and, more especially, no evidence that the attachment was malicious. The jury found, in answer to special interrogatories, that the attachment was wrongful and malicious and without reasonable cause, and we think that there was evidence to support such findings. If this is so, the jury was warranted in giving exemplary damages, provided, of course, actual damage to some amount was shown. That some actual damage was established which might be recovered in the counterclaim on the bond, if the jury found the attachment to have been wrongfully sued out and without reasonable cause, is not questioned. Therefore the jury was justified in allowing exemplary damages, if there was evidence tending to show that plaintiff in suing out the attachment had no reasonable cause to believe the ground upon which it was sued to be true, but acted maliciously in so doing. On the evidence there can be no serious question but that the jury might properly find plaintiff to have been without reasonable cause to believe that defendant's disposal of its property was with intent to defraud the plaintiff, and that plaintiff had reasonable cause to believe that any such intention existed. The only serious question under the evidence is as to whether plaintiff acted maliciously.

To constitute the malice necessary to sustain the allowance by the jury of exemplary damages in such cases it is not necessary to prove more than that plaintiff acted with the intention, design, or set purpose to injure the defendant. Raver v. Webster, 3 Iowa, 502, 66 Am. Dec. 96; Gaddis v. Lord, 10 Iowa, 141;Nordhaus v. Peterson, 54 Iowa, 68, 6 N. W. 77;Hurlbut v. Hardenbrook, 85 Iowa, 606, 52 N. W. 510;Union Mill Co. v. Prenzler, 100 Iowa, 540, 69 N. W. 876. Without attempting to recite in full the evidence relied upon for defendant as tending to show that the agent of plaintiff, who acted in the enforcement of this claim, caused an attachment to be issued with the purpose of injuring defendant, because it did not immediately pay the amount of money due when demanded, and acted without any reasonable ground to believe that defendant had any purpose of defrauding plaintiff in disposing of its property, it is sufficient to say that the evidence quite strongly tends to show that the action of plaintiff's agent was prompted by his resentment at the defendant for not at once getting and paying over the amount due, rather than by any belief that defendant was actuated by any fraudulent purpose. P. L. Fowler, who was in fact carrying on business under the name of the Iowa Hardware Company, and who was made with the company a joint defendant in the action, appears to have had unincumbered property within this state subject to execution in value exceeding the amount of plaintiff's entire claim, and there is not the slightest evidence that this property...