Johnson v. Dun

• Decision Date: 02 February 1899
• Citation: 78 N.W. 98,75 Minn. 533
• Parties: JOHNSON et al. v. DUN et al.
• Court: Minnesota Supreme Court

75 Minn. 533

78 N.W. 98

JOHNSON et al.

v.DUN et al.

Supreme Court of Minnesota.

Feb. 2, 1899.

Appeal from district court, Hennepin county; David F. Simpson, Judge.

Action by John C. Johnson and others against Robert G. Dun and others. Verdict for plaintiffs. From an order refusing a new trial, defendants appeal. Affirmed.

Syllabus by the Court

The plaintiffs delivered to the defendants certain notes for collection. The latter sent them to their attorney in the state of Connecticut, who there brought suit on them and attached the property of the maker. The attachment was voluntarily released in consideration of a bond to pay any judgment that might be finally recovered. The statute of that state provides that an attachment may be released by the court, on application and giving a bond to pay the judgment, not exceeding the value of the property attached. The plaintiffs recovered judgment on the notes, but declined to pay the attorney's fees until the judgment was collected. Thereupon the attorney settled the judgment, and surrendered the bond, as satisfied, to the obligors. Held, that the act of the attorney was a conversion of the bond, for which the defendants were liable; and, further, that the bond cannot be construed as a statutory bond for the dissolution of the attachment, but that it is a common-law bond for the payment of the judgment, and the measure of damages in this action for a conversion of the bond is prima facie the amount of the judgment which it secured. William W. Bartlett and W. E. Hale (W. W. Macfarland, of counsel), for appellants.

W. A. McDowell, for respondents.

START, C. J.

On October 1, 1891, the firm of Dunham & Johnson, consisting of John Dunham and the plaintiff John C. Johnson, delivered to the defendants, R. G. Dun & Co., a mercantile agency, having a collection department, promissory notes, made by J. E. Boyd, of the aggregate face amount of $5,150, for collection. The defendant sent the notes to Lyman S. Burr, an attorney at law at New Britain, Conn., who, on September 26, 1892, commenced an action against Boyd in the state of Connecticut on the notes, factorizing Chisholm, Boyd & White, the company of which Boyd was a member. Thereupon the firm of Chisholm, Boyd & White executed to the plaintiffs in the action a bond in the sum of $10,000, in consideration of which the attachment was released. The condition of the bond is in these words: ‘The condition of the obligation is such that, whereas, by writ dated at New Britain, Connecticut, September 22nd, A. D. 1892, there was attempted to be attached goods, effects, and estate of the said obligors, or of said Boyd, alleged to be concealed in the hands of the Yale Brick Company, a corporation doing business at Berlin, Connecticut, in a cause of action wherein said obligees are plaintiffs and said Boyd is defendant, returnable to the superior court of Hartford, Connecticut, on the first Tuesday of October, 1892: Now, therefore, on consideration of the release of said attachment against said Yale Brick Company by said Dunham & Johnson, if said Chisholm, Boyd & White, said obligors, or either of them, shall pay the judgment that may be finally recovered against said Boyd in said suit, on execution issued, then this obligation shall be null and void; otherwise, of full force and virtue.’ The result of the action against Boyd was a judgment in favor of the plaintiffs in the sum of $7,221.04. The plaintiffs herein, John C. Johnson & Co., succeeded the firm of Dunham & Johnson, and own its assets. The fee charged by Burr for securing the judgment was $1,500, which included $500 for the fees of associate counsel. He wrote several letters to Dun & Co., and to the plaintiffs, asking pay for his services, but nothing was paid except $200, to apply on costs and disbursements; the plaintiffs refusing to pay anything further until the judgment was collected. Afterwards, and about August 10, 1894, Burr wrote Dun & Co. that he could sell the bond in question to the sureties for about $5,000, payable in cash and notes, and that he proposed to do so in order to get money to pay his fees, to which Dun & Co. replied: ‘We trust that you will not do anything so rash as to sell this bond because Mr. Johnson has been dilatory in paying attorney's fees.’ He did, however, without the authority of either of the parties to this action, settle the judgment, and surrendered, as satisfied, the bond to one of the obligors thereof, in consideration of $5,000, payable in promissory notes, one of which, for $1,800, was payable to Burr, and the balance to R. G. Dun & Co., to whom Burr sent the notes payable to them, with a report of the transaction. The plaintiffs refused to accept of this settlement, and brought this action against Dun & Co. to recover damages for the conversion of the bond. The plaintiffs had a verdict for $8,297.65, and the defendants appealed from an order denying their motion for a new trial.

1. That the act of Burr in disposing of the bond was a conversion is too obvious to admit of reasonable controversy. ‘Any distinct act of dominion, wrongfully exerted over one's property, in denial of his right, or inconsistent with it, is a conversion.’ Cooley, Torts, 448. Whether the defendants were liable for the wrongful act of Burr was one of the issues at the trial, the determination of which depended on the contract between the plaintiffs and defendants as to the collection of the notes against Boyd. The plaintiffs claimed that the contract was a general and unlimited one to undertake the collection of the notes for them, while the defendants claimed that the contract was a limited one, whereby they were to transmit the notes for collection to an attorney, for whose acts or omissions they were not to be responsible, except for money actually collected by him and not paid over. The jury found for the plaintiffs on this issue, but the defendants here urge that the finding is not sustained by the evidence. We have examined the record, and find that the verdict in this respect is sustained by the evidence.

The defendants also assign as error the refusal of the trial court to give, as applicable to this issue, their requests Nos. 1 and 2. They both refer to the effect to be given to the evidence relating to the previous course of business between the parties in determining what the contract was as to the collection of the particular notes in question. The requests occupy more than a page and a half of the paper book, and are so manifestly argumentative and misleading that it would have been error to have given either of them. 11 Enc. Pl. & Prac. 142. The trial court, however, did instruct the jury that, in determining what the contract was, they might take into consideration the previous course of dealing between the parties, and all of their correspondence tending to throw any light thereon, and correctly submitted the issue to them. The defendants having accepted the notes for collection without any limitations of their liability, it follows that they are liable for the acts of their attorney, Burr....