Loeb v. Mann

• Decision Date: 21 September 1893
• Citation: 18 S.E. 1,39 S.C. 465
• Parties: LOEB et al. v. MANN.
• Court: South Carolina Supreme Court

18 S.E. 1

39 S.C. 465

LOEB et al. v. MANN.

Supreme Court of South Carolina

September 21, 1893

Appeal from common pleas circuit court of Abbeville county; James F Izlar, Judge.

Action of claim and delivery by Loeb Bros. & Co. against W. D. Mann to recover the possession of certain liquors taken by defendant under a mortgage by F. C. Perry to certain creditors. From a judgment in favor of plaintiffs for the property and $50 damages, defendant appeals. Reversed, unless plaintiffs, in 10 days, remit the damages assessed.

Carker & McGowan, for appellant.

Graydon & Graydon, for respondents.

McGOWAN J.

This is an action of "claim and delivery" for certain articles of personal property. It seems that F. C. Perry was a retail liquor dealer in Abbeville; that he filed, having in his store the following articles, viz. Two barrels of rye whisky and two cases of fine brandy, worth in the aggregate $223.60; that these articles had been seized by the defendant, Mann, as sheriff, in behalf of one claiming to be a mortgage creditor of Perry, and that the articles were covered by his mortgage. The plaintiffs are liquor dealers of Cincinnati, Ohio, and the complaint alleged that the afore did articles, although in Perry's store at Abbeville were not his property, but had been "consigned" to him by the plaintiffs for sale upon their account, and that the defendant, W. D. Mann, the sheriff, wrongfully and unlawfully took said articles from the possession of Perry and, although demanded by the plaintiffs, the said defendant refused to deliver them, and still unjustly detains them from the plaintiffs, "to their damage two hundred dollars. Wherefore, the plaintiffs demand judgment against the defendant for the recovery of possession of the said goods or, in case a delivery thereof cannot be had, for the value thereof,--the sum of $223.40,--together with two hundred dollars, their damages, and for the costs and disbursements of the action." The defendant answered that he did not wrongfully and unlawfully take possession of said goods and chattels, but claimed that he seized the same under and by virtue of a certain mortgage to one Bieman by F. C. Perry, who was then in possession of said goods, and that after the seizure, and before demand by plaintiffs, the defendant was enjoined from selling or disposing of said goods by the court until further order, which has never been made. During the progress of the trial, I. S. Loeb, one of the plaintiffs, was allowed the testify that he was the traveling member of the plaintiffs' firm, and in that capacity made his regular rounds about five times in the year, and he came to Abbeville to collect a debt; that he was shown the barrels and cases of liquor in the custody of the defendant, and upon demand and refusal to deliver the articles he instituted the action, gave bond, and, having the goods delivered to him, he shipped them off upon the Richmond & Danville Railroad. Among other things, he was allowed, over objection, to state what damages he had sustained by reason of the taking of the goods by the sheriff,-the expenses he had incurred, such as railroad expenses, and all that, (objection of defendant overruled.) Witness proceeded: "Well, in all, I have lost ten days' time. I have made one trip besides the one here. When I came here for the goods, I came from Charleston, and returned just as I am doing now, and my time, at the least calculation, is worth $5 a day, and railroad fare, $33, for the second trip; hotel bills, $23; and my attorneys' fees is ten per cent. on the amount recovered, $22,-aggregating $129.93. (Objection noted by request.)" Upon the subject of damages the circuit judge charged as follows: "Now, as to damages, in case you should find for the plaintiffs, the successful party is entitled to damages in all cases where damages are claimed. The amount may be nominal, and it is for you to say what it shall be. In estimating the damages, you are to be governed by the evidence. You must not give remote or speculative damages, and in actions of this kind the case may arise where vindictive damages may be allowed, but I see nothing in this case which would warrant vindictive damages. There was nothing in the action of the sheriff to show that what he did was done maliciously, wantonly, or recklessly; and the mere statement of the complaint that it was 'wrongfully' done does not necessarily imply that it was as forcible and malicious taking," etc. There was no evidence that the property itself had been damaged, or even opened, or that the short delay had reduced the price. The verdict was for the plaintiffs, (already in possession of the property,) and $50 damages. The defendant appeals upon several grounds, but, from the view which the court takes, it will not be necessary to consider any of them, except the second, which is as follows: "Because the circuit judge erred in allowing the plaintiffs, over specific objections, to swear that the was damaged in the sum of $129.93, included in which amount was an itemized statement as to the plaintiff's alleged expenses, as follows: (1) 10 days lost, (computed,) $5 per day; (2) railroad fare, $33; (3) hotel bills, $23; (4) attorney's fees, ten per cent. on amount recovered, $22."

The complaint does not make any claim for special damage, and the circuit judge charged that the case was not one for vindictive damages; so that it must be considered as a plain and ordinary case for the recovery of personal property, and (the property having been delivered,) special damage cannot be recovered, unless expressly alleged." Lipscomb v Tanner, 31 S.C. 49, 9 S.E. Rep. 733. What is this special damage, which cannot be proved without being specifically alleged? There is certainly a lack of clearness in the authorities on the subject, but it seems to us that what are called "general damages," as contradistinguished from "special damages," are...