State v. Parsons

• Decision Date: 24 January 1905
• Citation: 84 S.W. 1019,109 Mo. App. 432
• Parties: STATE ex rel. CLARK et al. v. PARSONS et al.
• Court: Missouri Court of Appeals

84 S.W. 1019

109 Mo. App. 432

STATE ex rel. CLARK et al. v. PARSONS et al.

St. Louis Court of Appeals. Missouri.

January 24, 1905.

WRONGFUL ATTACHMENT — STOCK OF GOODS — DAMAGES—INSTRUCTIONS—ATTORNEY'S FEES—EVIDENCE.

1. The damages for wrongful attachment of a stock of goods, so far as they are concerned, is not what they brought at the sale under the attachment, or what they would have sold at retail, but their actual value at the time and place of seizure, which, to the extent that the goods were new, is the cost of replacing them (that is, their wholesale price, plus freight); such cost, however, being only a relevant circumstance as to the value of old and shopworn goods, which have no market value; so that an instruction fixing the damages at the market value, and defining this as the value of the goods when sold in the way of ordinary business for cash in the city of the seizure, is erroneous.

2. As part of the damages for wrongful attachment may be recovered the reasonable amount paid attorneys by defendants in attachment for services in the trial court and on appeal in connection with the attachment proper, but not the amount paid the attorneys for their services on the merits of the case after dissolution of the attachment.

3. The opinion of the appellate court in an attachment case is not admissible in evidence in an action on the attachment bond, it being admitted that the attachment was not successfully maintained.

Appeal from Circuit Court, Knox County; E. R. McKee, Judge.

Action by the state, on the relation of John L. Clark and another, against Fred B. Parsons and others. Judgment for plaintiffs. Defendants appeal. Reversed.

Geo. D. Reynolds and O. D. Jones, for appellants. Campbell, Balthrope & C. D. Stewart, for respondents.

Opinion.

GOODE, J.

This is an action on an attachment bond by the appellants. On March 3, 1899, Fred B. Parsons instituted an action of attachment against John L. and Felix Clark in the circuit court of Knox county and H. R. and E. O. Parsons were his sureties on the bond given in the proceeding, which was in the penal sum of $8,500, of the ordinary form, and conditioned as follows: "Now, therefore, if said plaintiff shall prosecute said action without delay and with effect, refund all sums of money that may be adjudged to be refunded to the defendants or found to have been received by plaintiff and not justly due to him, and pay all damages and costs that may accrue to any defendant, garnishee or interpleader by reason of any process or proceeding in the suit, or by reason of judgment or process thereon, and pay all damages and costs that may accrue to any sheriff or other officer by reason of acting under the writ of attachment following the instruction of plaintiff, then this obligation is to be void; otherwise to remain in full force." Judgment went for the Clarks in the attachment action in the circuit court, both on the plea in abatement and on the merits, and that judgment was affirmed by this court. Parsons v. Clark, 98 Mo. App. 28, 77 S. W. 582. Subsequently the Clarks (defendants in the attachment action, relators in this one) instituted the present action on the bond. Under the writ of attachment a stock of merchandise owned by them had been seized and sold at sheriff's sale, realizing $2,350. In the present action the relators laid their damages by reason of the seizure and sale of the merchandise at the sum of $6,235.97, with interest thereon at the rate of 6 per cent. from March 3, 1899, when the attachment writ was levied. Damages were also claimed for attorney's fees in the sum of $800, and for further expense incurred in the defense of said suit in the sum of $125. After the final decision of the attachment case, the proceeds of the sale of the merchandise were turned over to the relators, which, being deducted from the damages they alleged, left a balance of $6,137.06, for which they prayed judgment. The answer denied that relators were entitled to judgment in any sum, except a reasonable attorney's fee, stated to have been tendered prior to the institution of the suit.

The main contention between the parties was as to the value of the merchandise which was attached and sold, and on this subject the testimony varied widely. There is also a dispute as to the amount of the attorney's fee the relators ought to recover; the defendants asserting there should be no more than $250 allowed for this item, whereas the relators claimed $800. The position of the defendants in regard to the attorney's fee is that no fee paid by the relators can be recovered in the present action on the bond, except what reasonably was earned by the attorneys on the trial of the plea in abatement in the circuit court, and not an amount to cover services in the trial on the merits, or on the hearing of the appeal from the judgment on the plea in abatement.

A point is made against the sufficiency of the petition in assigning specific breaches of the bond. The breach assigned is that Parsons, the principal obligor, did not prosecute the attachment action with effect. His defeat on the plea in abatement was a clear breach of the condition of the bond, and is the one specified. The petition might have been more carefully drawn, but it is good enough to support a verdict; no motion having been made for an order that it be made more definite.

In an instruction given in regard to the ascertainment of the damages sustained by the Clarks by reason of the wrongful attachment, seizure, and sale of the stock of merchandise and fixtures, the court told the jury they should find from the evidence the market value of the merchandise on the date it was seized, and add thereto the interest at 6 per cent. from that date to December 8, 1902, when the stock was sold, deducting from the amount the sum of $2,350, which the stock sold for, and which was paid to the Clarks, and allow interest on the remainder at 6 per cent. to the date of the verdict. In another instruction the court defined the phrase "market value," as used in the instructions, to mean the value of the property "when sold in the way of ordinary business, for cash, in the city of Edina." The latter instruction is complained of as erroneous. It is said to have had the effect of requiring the jury to measure the value of the merchandise by what it could be sold for at retail in Edina. Indeed, it is conceded that the customary mode of disposing of merchandise in that town is at retail, and some of the witnesses whose testimony concerning the value of the stock was received in behalf of the Clarks said they estimated its value with reference to what it would bring when sold in that manner. The language of the instruction was that "market value" meant what the goods would yield "when sold in the way of ordinary business for cash in the city of Edina." The court did not advise...