Lowenstein v. Monroe

• Decision Date: 31 December 1880
• Citation: 55 Iowa 82,7 N.W. 406
• Parties: LOWENSTEIN v. MONROE.
• Court: Iowa Supreme Court

55 Iowa 82

7 N.W. 406

LOWENSTEIN

v.MONROE.

Supreme Court of Iowa.

Filed Dec. 1880.

Appeal from Polk circuit court.

Plaintiff brought an action against the defendant on an account for goods and merchandise sold and delivered. The petition prayed the issuance of a writ of attachment upon the ground that defendant had disposed of his property in part, and was about to make further disposition thereof, with intent to defraud his creditors. The writ was issued, and levied upon a stock of clothing owned by defendant and in his store, and said store was closed by the sheriff. The answer, in addition to a general denial of indebtedness, set up a claim against the plaintiff for $3,000, based upon the alleged wrongful, wilful, and malicious sueing out of the writ of attachment. The plaintiff moved for a more specific statement of the damages sustained by the defendant. The motion was sustained, and thereupon the defendant amended by setting out the damages in a more definite manner. The plaintiff moved to strike out a number of the items of damages, upon the ground that the same were not recoverable, being remote, uncertain, and speculative. The motion was sustained in part. From the ruling on the motion defendant appeals.Maxwell & App and William Phillips, for appellant.

Brown & Dudley, for appellee.

ROTHROCK, J.

1. The several allegations of the answer and counter claim, which were struck out on motion, are as follows:

“(1.) The said attachment was levied on a stock of his (defendant's) goods, which was then of the value of about $6,000; and by reason of such levy and invoice, and the retail trade of the same being thereby cut off, the value of said stock of goods was reduced to about the sum of $3,000. (3.) That by reason of said levy the defendant was prevented from selling said goods at the season they were salable, and when there was a demand for them, by reason of which he was damaged in the sum of $400. (4,) That the defendant's business house was closed up, and in the hands of the officer under said attachment, for two months, whereby the defendant was damaged, in the loss of sales of said goods, in the sum of $500. (6.) That by reason of said attachment the defendant lost a large part of his custom, by reason of persons, who had for a long time been his regular customers, being induced to go elsewhere to trade, on account of his store being closed up, whereby he was damaged in the sum of $1,500. (7.) That by reason of said attachment the defendant lost his credit at and with the wholesale houses, where he had for years purchased his goods on time, and was thereby compelled to make cash purchases only, and was thereby unable to keep up his stock so as to fill the demands of the market, whereby he was damaged in the sum of $2,000. (8.) That by reason of said attachment the defendant's business house was closed up for two months, during which time he was compelled to pay rents on the same, which amounted to the sum of $120, whereby he was damaged in the said sum of $120. (9.) That during all said time the defendant's business was suspended, and his trade cut off by said attachment, which was a damage to him of $1,000.”

All of the first of the above divisions of the answer which follows the words “levy and invoice” was stricken out. The remainder was allowed to stand. We think this was erroneous. It is in substance an allegation that...