Perkins v. Ewan

• Decision Date: 04 February 1899
• Citation: 49 S.W. 569,66 Ark. 175
• Parties: PERKINS v. EWAN
• Court: Arkansas Supreme Court

49 S.W. 569

66 Ark. 175

PERKINS v. EWAN

Supreme Court of Arkansas

February 4, 1899

Appeal from Monroe Circuit Court, JAMES S. THOMAS, Judge.

STATEMENT BY THE COURT.

This is an action upon an indemnifying bond. One Henry Goldman was the owner of a stock of goods worth from three to five thousand dollars. Goldman was indebted to the plaintiffs, J R. Perkins et al., in sums aggregating over seven thousand dollars. To secure this indebtedness, he gave them a mortgage upon his stock of goods, and put them in possession of the same. Goldman was also indebted to other parties in large amounts, and certain of these parties brought suits against him in the Monroe circuit court, and had attachments issued against his property, and directed the sheriff to levy the attachments upon the stock of goods above mentioned. The sheriff demanded an indemnifying bond, and thereupon defendants, P. C. Ewan et al., executed the bond upon which this action is brought.

The sheriff levied upon the goods, and took them from the possession of the plaintiffs. Afterwards the judge of the Monroe circuit court, on motion of defendants, appointed a receiver to take charge of and sell the attached goods. The plaintiffs had notice of this application for a receiver, but did not appear. The receiver sold the attached property as ordered, and afterwards turned over the proceeds to the plaintiffs, less $ 342.90, costs of selling the goods including clerk's hire, etc. Plaintiffs brought this action upon the indemnifying bond to recover damages for the unlawful seizure and conversion of their goods.

Upon the trial the circuit judge gave the following instructions to the jury: "(1) It is admitted in this case that the levy upon the goods of plaintiff was wrongful, and this entitled the plaintiff to recover in some amount, unless you find that the plaintiffs have already received of the defendants, on account of the unlawful levy and conversion an amount equal to the value of the goods at the time of the levy, and six per cent. interest to the time of payment. The burden is upon the plaintiff to show the value of the goods taken and converted, and the burden is upon the defendants to show the amount paid by them on account of said unlawful levy. (2) If you find the plaintiff is entitled to recover you will assess the damage at the value of the goods at the time of the levy, with six per cent. interest to this date, less such sums as have been paid, and six per cent. interest thereon to this date from the date of payment, after deducting the necessary expenses of the sale. (3) In fixing the value of the goods, you are instructed that what this stock may have sold for at forced sale, or similar stocks, is not the criterion of value. (4) The jury are instructed that if they find from the evidence that the goods were sold by T. H. Jackson, as receiver, upon the terms and in the manner designated by the mortgage given by Henry Goldman to the plaintiffs in this action, then the necessary expenses incurred in such sale, and the taxes thereon, should be deducted from the sum which the plaintiff should recover; and if you find from the evidence that said goods were sold at their value in bulk, in the town of Brinkley, and that the plaintiffs or their attorneys have received the money, less the expenses of the sale, taxes, etc., they will find for the defendant."

The plaintiffs objected, and saved exceptions to instruction No. 4, and to so much of No. 2 as authorized the jury to deduct expenses of the sale from the value of the goods.

There was a verdict and judgment for defendants. Plaintiffs moved for a new trial, and, the same being overruled, appealed.

N. W. Norton, C. F. Greenlee, J. N. Cypert and J. W. Phillips, for appellants.

The goods of plaintiffs were turned into cash against their consent, and they can not be held liable for the cost of so doing. 45 Ark. 112; 39 Ark. 70. No process was ever issued upon the bill for a receiver, and hence no such cause was before the court. 62 Ark. 401. An action pending in equity involving the title to the property was no bar to a recovery in conversion. 52 Ark. 416. Plaintiffs were not required to be satisfied with the amount for which the goods were sold. 45 Ark. 112; 62 Ark. 135; 39 Am. Dec. 509.

J. C. Hawthorne and Grant Greene, Jr., for appellees.

The expense of the sale was a necessary one, and appellants should bear it. 91 Mass. 62; 4 Paige, 24; 2 Johns. Ch. 582; 24 N.Y. 505; 1 Suth. Dam. 239; 3 id. 527, 536; 106 Mass. 331; 35 Mass. 278; 31 Mass. 356. Appellant's attorney waived service of notice of application for receiver, and hence there was no occassion for summons. 18 S.E. 268; 37 P. 1052; 9 L. R. A. 845 and note. The judgment appointing the the receiver can not be collaterally attacked. 62 N.W. 1050; 38 P. 854. Appellants were not prejudiced by evidence tending to show that goods were worth less than the invoice price. 44 N.W. 327; 91 Mass. 62.

OPINION

RIDDICK, J., (after stating the facts.)

This was an action upon an indemnifying bond to recover damages for the unlawful seizure and conversion of goods. It is admitted that the defendants, in an action against one Goldman, caused the goods of plaintiffs to be seized and sold, but the defense is that plaintiffs have received the full value of such goods, less the costs of selling the same, and that this is all to which they are entitled. But we feel very confident that this contention can not be sustained. The goods of plaintiffs were wrongfully seized and sold, and they are entitled to recover their value at the time of the seizure, with 6 per cent. interest from that date, and defendants cannot...