Jenkins v. Commercial Nat. Bank of St. Anthony

• Decision Date: 03 February 1911
• Parties: H. E. JENKINS, Respondent, v. THE COMMERCIAL NATIONAL BANK OF ST. ANTHONY, a Corporation, Appellant
• Court: Idaho Supreme Court

113 P. 463

19 Idaho 290

H. E. JENKINS, Respondent, v. THE COMMERCIAL NATIONAL BANK OF ST. ANTHONY, a Corporation, Appellant

Supreme Court of Idaho

February 3, 1911

DAMAGES-WRONGFUL FORECLOSURE OF CHATTEL MORTGAGE-INSUFFICIENCY OF COMPLAINT - IMPROPER EXAMINATION OF WITNESS - ATTORNEY'S FEES.

(Syllabus by the court.)

1. In an action for damages where the complaint as a whole states a cause of action, and a demurrer is filed to the entire cause of action, it is not error for the trial court to overrule such demurrer, even though the facts stated as to a particular item of damages are insufficient to entitle the plaintiff to recover for such particular damage.

2. In an action for damages it is error for the trial court to permit such questions to be asked a plaintiff as, "In what way were you damaged by reason of your horses being taken, by reason of the foreclosure of this mortgage?" "Tell us how you were damaged." "State to the jury what damages you sustained by reason of the foreclosure of this mortgage." "Could you give an idea?" "State how you were damaged by reason of the foreclosure of this mortgage."

3. When, however, improper questions are asked, and the answers are so indefinite and general that the jury could in no way have been aided, influenced or misled by such answers, the judgment will not be reversed solely because of the error of the court in permitting such questions to be answered.

4. The expense for loss of time and the expense of employing counsel in advising the method to be pursued by the mortgagor in resisting the foreclosure of a chattel mortgage, where it is claimed by the mortgagor that the debt has been paid, cannot be recovered in such action or in an independent action brought for the purpose of recovering such damages.

5. Attorney's fees cannot be recovered in an action unless authorized by statute or by express agreement of the parties except in extreme cases where there is wilful wrong, gross negligence or fraud.

6. Findings of fact and conclusions of law are not required where the cause is tried to a jury, and are only required upon the trial of questions of fact by the court.

APPEAL from the District Court of the Sixth Judicial District of the State of Idaho, in and for the County of Fremont. Hon. James M. Stevens, Judge.

An action for damages for the wrongful foreclosure of a chattel mortgage. Judgment for plaintiff. Judgment modified.

Judgment modified, and the trial court directed to enter judgment in favor of the respondent for the sum of $ 184.05 and costs. Costs of this appeal awarded to the appellant.

Soule &amp Soule, for Appellant.

The line of testimony and questioning admitted in this case has been so uniformly held reversible error that it has become fundamental in our law. (Axtell v. M. P. Ry. Co., 9 Idaho 392, 74 P. 1095; McKissick v. O. S. L. Ry Co., 13 Idaho 195, 89 P. 629; Hays v. Windsor, 130 Cal. 230, 62 P. 395; Atchison T. S. F. Ry. Co. v. Wilkinson, 55 Kan. 83, 39 P. 1043; Wellington v. Moore, 37 Neb. 560, 56 N.W. 200; Tenney v. Rapid City, 17 S.D. 283, 96 N.W. 96.)

The courts are unanimous in holding that attorney's fees are not allowable as an element of damage in a case of this kind. (Oelrichs v. Spain, 15 Wall. (U. S.) 211, 21 L.Ed. 43; Boardman v. Marshalltown Grocery Co., 105 Iowa 445, 75 N.W. 343; Hays v. Windsor, 130 Cal. 230, 62 P. 395; Bull v. Keenan, 100 Iowa 144, 69 N.W. 434; Joslin v. Teats, 5 Colo. App. 531, 39 P. 349; Dorris v. Miller, 105 Iowa 564, 75 N.W. 482; Irlbeck v. Bierle, 84 Iowa 47, 50 N.W. 36.)

This has always been the rule from the earliest decisions to the present time, except in a very few states in a very few cases, where fraud, wilful wrong or deceit is pleaded and proved. (13 Cyc. 79, 80; Bull v. Keenan, supra; Spencer v. Murphy, 6 Colo. App. 453, 41 P. 841; Goodbar v. Lindsley, 51 Ark. 380, 14 Am. St. 54, 11 S.W. 577; Boardman v. Marshalltown Grocery Co., supra.)

The plaintiff was not entitled to recover any of the items which he expended in this litigation.

Millsaps & Miller, for Respondent.

It must be conceded that this action is the same as an action for damages where a wrongful attachment has been issued and a person's property has been wrongfully attached under the same. That person is entitled to recover all the damages sustained by reason of the wrongful attachment of his property, and this would include the reasonable use of the property attached, his loss of time and expense in procuring a dissolution of the attachment and the release of the property, and also the attorney's fees paid in securing a dissolution of the attachment and a release of the property. The same rule of law applies as to damages in wrongful attachments, wrongful injunctions and wrongful foreclosure of chattel mortgages. (Tootle v. Kent, 12 Okla. 674, 73 P. 310; Kyd v. Cook, 56 Neb. 71, 71 Am. St. 661, 76 N.W. 524; Tyler v. Safford, 31 Kan. 608, 3 P. 333; McGill v. Fuller & Co., 45 Wash. 615, 88 P. 1038; Fry v. Estes, 52 Mo.App. 1.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This is an action brought to recover an alleged sum of money claimed to have been paid by the plaintiff to the defendant under protest upon proceedings to foreclose a chattel mortgage, and for damages alleged to have been sustained by the plaintiff for the alleged wrongful proceedings in foreclosing said chattel mortgage. The case was tried to a jury and a verdict rendered in favor of the plaintiff for the sum of $ 239. The court also made findings of fact and conclusions of law, and rendered a judgment on the verdict and findings in favor of the plaintiff for the sum of $ 239.29, with interest and costs. A motion for a new trial was made and overruled. This appeal is from the judgment and also from the order denying and overruling the defendant's motion for a new trial.

The first question presented on this appeal is the action of the court in overruling the demurrer to the complaint. The facts alleged in the complaint are in substance as follows: That on January 14, 1909, the plaintiff executed a promissory note to the defendant for the sum of $ 1,000, and gave as security for the same a chattel mortgage upon 150 head of horses; that about September 14, 1909, there was due and unpaid upon said note and mortgage the sum of $ 438.30; that the plaintiff on said date, at the Commercial National Bank at St. Anthony, Fremont county, state of Idaho, tendered to said defendant in payment of said sum, $ 438.30 in lawful money of the United States, and requested and demanded the cancellation and release of said mortgage, and that the defendant refused said tender, and refused and neglected to cancel or deliver up said note or release said mortgage; that on October 1, 1909, the defendant commenced the foreclosure of said chattel mortgage by affidavit and notice, and that the sheriff, under notice, seized and took into his possession a portion of said property described in the mortgage, and threatened to seize and take into his possession the remainder of said property for the purpose of selling the same to satisfy said mortgage claim consisting of $ 475 principal, and $ 18 interest, and $ 75 attorney's fees and costs of foreclosure; that in order to prevent the sheriff from taking into his possession said mortgaged property, and to save expense and costs, the plaintiff on October 5, 1909, paid to the said sheriff, under protest, for the use and benefit of the plaintiff, the sum of $ 475 principal, $ 18 interest, and $ 75 attorney's fees and $ 9.50 costs, making a total of $ 577.50, when in fact and truth there was only due to the said defendant upon said note and mortgage the sum of $ 438.30, which the plaintiff had before tendered to said defendant; that the money so paid said sheriff has been turned over to the said defendant.

As a second cause of action the complaint alleges, among other things, "That by reason of the foreclosure of said chattel mortgage by the defendant, and the seizure and taking of said horses by the said sheriff, under and by virtue of said affidavit and notice, as aforesaid, the plaintiff lost the use of said horses from the second day of October to the 5th day of October, 1909, and also by reason thereof lost a contract for the hauling of beets, which he otherwise could have secured, and was also compelled to and did employ attorneys to look after and protect his interests, and lost several days of his own time to his damage and injury in the sum of $ 250."

The defendant demurred to the complaint upon the following grounds: First, that said complaint, and the whole of it, does not state facts sufficient to constitute a cause of action. Second, that the first alleged cause of action set out in plaintiff's complaint does not state facts sufficient to constitute a cause of action. Third, that the second alleged cause of action set out in plaintiff's complaint does not state facts sufficient to constitute a cause of action. Fourth, that said complaint is uncertain in this, that it cannot be determined therefrom what the nature of the damages complained of consists of.

The defendant also moved to strike out of the plaintiff's amended complaint, on the ground that the same is immaterial, irrelevant and redundant matter, paragraph 2 of plaintiff's second cause of action, for the reason that the matters therein alleged are not proper elements of damage, are too remote, and are not the approximate result of the acts of the defendant complained of.

The demurrer and the motion were overruled, and this is assigned as error. It will be observed that the first ground of demurrer goes to the entire complaint, and the second ground goes to the sufficiency of the facts alleged in the first cause of action. There is no...