State ex rel. Roe v. Thomas

• Decision Date: 31 March 1854
• Citation: 19 Mo. 613
• Parties: THE STATE, TO USE OF ROE, Plaintiff in Error, v. THOMAS, Defendant in Error.
• Court: Missouri Supreme Court

19 Mo. 613

THE STATE, TO USE OF ROE, Plaintiff in Error,

v.THOMAS, Defendant in Error.

Supreme Court of Missouri.

March Term, 1854.

1. In an action upon an attachment bond given under our statute, the plaintiff can only recover the natural and proximate damages resulting from the attachment. Damages for injuries to credit and business can only be recovered in an action on the case for maliciously suing out an attachment.

Error to St. Louis Court of Common Pleas.

On the 12th of September, 1849, Samuel Gunn sued out of the St. Louis Circuit Court an attachment against Bernard F. Roe, a resident of Iowa, for three hundred and nineteen dollars, and executed an attachment bond in the usual form, with Jacob P. Thomas as security. The writ of attachment was levied upon a lot of merchandise, worth from one o two thousand dollars, belonging to Roe, purchased by him of merchants in St. Louis, for Roe's store in Iowa, and then being on board a steamboat at the levee in St. Louis. Roe was then in Iowa. A forthcoming bond was executed by the friends of Roe, and the goods were sent forward on the same boat, without losing the trip. The attachment cause was tried on its merits, before a jury, March 5th, 1852, and a verdict found for defendant, Roe, for seventy dollars, on an offset, upon which judgment was rendered, which remains unreversed.

On the 10th of August, 1852, this suit was commenced on the attachment bond, in the St. Louis Court of Common Pleas, against Gunn and Thomas, and a trial had at the September term, 1853, of said court. There was no service on Gunn, and the suit, as to him, was dismissed.

Upon the trial of this cause before a jury, the plaintiff gave in evidence the attachment bond and the transcript of the record of the attachment suit, and then proved that Roe had sustained direct damages and costs to the amount of three hundred and fifty-eight dollars and fourteen cents, under the following heads: For costs of taking depositions and other taxable costs in the case of Gunn against Roe; for Roe's attorney's fees, in said suit; for Roe's hotel and traveling bills, while attending to said suit for Roe's expenses in taking witnesses to the place of taking their depositions, and for their board while attending; for Roe's direct damages for the detention of his goods and expenses incurred by him in proving their release; for the value of his time and services, while attending said suit, and interest on money expended by him in said suit. Plaintiff then offered to prove by competent witnesses that, by reason of the proceedings in said attachment suit, of Gunn vs. Roe, said Roe was greatly injured in his credit and standing in his business, which was that of a country retail merchant in the state of Iowa; that said Roe was in good credit and doing a good business up to the time of said attachment being sued out; that in consequence of said attachment proceedings, those who had heretofore credited him for goods refused to continue to credit him; that he was thereby wholly ruined in his credit and compelled to suspend business, and that by reason of such damage to his credit, said Roe sustained damage and loss, to an amount exceeding the penalty of the bond, $640. Defendant's counsel objected to the introduction of this testimony, on the ground that it was irrelevant, and that the defendant could not be held liable in law on his said bond, for loss and damages sustained by Roe in consequence of loss of credit, growing out of said attachment proceedings. The court sustained the objection, and the evidence was excluded, to which plaintiff excepted. This was all the evidence in the case. The court instructed the jury that plaintiff was not entitled to recover for any loss of credit which Roe may have sustained in consequence of said attachment proceedings. The jury gave a verdict for the plaintiff for three hundred and fifty-eight dollars and fourteen cents, and the plaintiff moved for a new trial, which was refused.

Proper exceptions were taken at the various stages of the proceedings, a bill of exceptions signed, and plaintiff prosecutes this writ of error.

Hill, Grover and Hill, for plaintiff in error.

This case involves the proper construction of the fourth section of the first article of the attachment act, (R. C. 1845,) relating to the condition of attachment bonds. The condition of the bond could not well be expressed in broader terms; to pay all damages that may accrue, by reason of the attachment or any process or proceedings, &c. It was evidently the design of the legislature to secure full and complete indemnity for all damages that might accrue to the defendant, directly traceable to the proceedings in the attachment suit, to the extent of the penalty of the bond; and to that extent, to hold both principal and surety liable for the same character of damages that might be recovered from the principal, in an ordinary action on the case. The record shows that the attachment against Roe was maliciously sued out; but while malice aggravates the damages, its existence is not necessary to entitle the plaintiff to the full measure of damages claimed. Loss of credit arising from an attachment is the legitimate subject of damages. Donnel v. Jones, 13 Ala. 490; 17 Ala. 689. The last case was a suit upon an attachment bond. As illustrating the rule of damages, the following authorities were cited: 18 Vermont, 620; 8 Pick. 356; Peake's N. P. cases, 270; 9 Wend. 325; 17 Wend 71; 23 Wend. 425.

F. A. Dick, for defendant in error, argued the following points:

I. Damages resulting from a loss of credit and from the non-realization of anticipated profits are too speculative and remote to be taken into consideration. Besides, so far as the profits from sales are concerned, the record in this case shows that the...