Swift v. Plessner

• Citation: 39 Mich. 178
• Court: Michigan Supreme Court
• Decision Date: 21 June 1878
• Parties: Frederic W. Swift et al. v. Paul Plessner

39 Mich. 178

Frederic W. Swift et al. v. Paul Plessner

Supreme Court of Michigan

June 21, 1878

Submitted June 14, 1878

Error to Superior Court of Detroit.

Debt on attachment bond. Defendants bring error.

Judgment affirmed with costs.

C. H Freeman, S. S. Babcock, and Meddaugh & Driggs for plaintiffs in error. Counsel fees on dissolution of an attachment are not recoverable in an action on the bond White v. Wyley, 17 Ala. 167; Shultz v Morrison, 3 Metc. (Ky.), 98; in a suit on an attachment bond the measure of damages is the actual loss and expense caused by the writ, excluding remote damages, Sedg. Damages, [6th ed. ] 488, n.; Campbell v. Chamberlain, 10 Ia. 337; and if damages have been suffered that cannot be considered under the strict rule that measure damages in actions on contracts, there is a common law remedy, the remedy on the bond being cumulative, Selden v. Cashman, 20 Cal. 56; Reidhar v. Berger, 8 B. Mon., 160.

Crofoot & Kudner for defendant in error. Counsel fees should be allowed on dissolution of writs of attachment and similar writs, Offut v. Edwards, 9 Rob. (La.), 90; Trapnall v. McAfee, 3 Metc. (Ky.), 34; Jones v. Doles, 3 La. Ann., 588; McRae v. Brown, 12 id. 181; Phelps v. Coggeshall, 13 id. 440; Hill v. Logan, 19 Ala. 344; Seay v. Greenwood, 21 id. 496; Behrens v. McKenzie, 23 Ia. 333; Misner v. Bullard, 43 Ill. 476; Ah Thaie v. Quan Wan, 3 Cal. 216; Derry Bank v. Heath, 45 N. H., 524; Brown v. Jones, 5 Nev. 374; Morris v. Price, 2 Blackf. 457; Hayden v. Sample, 10 Mo. 215; Aldrich v. Reynolds, 1 Barb. Ch. 613; Corcoran v. Judson, 24 N. Y., 106; Andrews v. G. W. Co., 50 N. Y., 282; so should damages for injury to one's business by being deprived of the use and enjoyment thereof, Drake on Attachment, § 175; Sedg. Damages [6th ed. ] 409, n; Dunning v. Humphrey, 24 Wend. 31; Cox v. Robinson, 2 Rob. (La.), 313; where damages cannot be estimated with certainty, all facts tending to show the probable amount may be given to the jury to enable them to make the most probable estimate which the nature of the case will permit, Allison v. Chandler, 11 Mich. 545; Burrell v. N. Y. & Sag. Solar Salt Co., 14 Mich. 34; Warren v. Cole, 15 Mich. 273; Gilbert v. Kennedy, 22 Mich. 128; Winchester v. Craig, 33 Mich. 209; Haynes v. Knowles, 36 Mich. 410; Hill v. Rushing, 4 Ala. 212; and the verdict is conclusive, Wehle v. Butler, 61 N. Y., 246.

OPINION

Cooley, J.

Swift, one of the plaintiffs in error, sued out in justice's court an attachment against the goods and chattels of defendant in error, bye virtue of which his stock in trade as a druggist was seized, and a keeper put in possession. This possession continued for a week, the shop being kept open in the meantime, and all calls responded to. When the attachment was sued out, it became necessary for Swift to give the statutory bond, the condition of which was that he would pay the defendant all damages and costs he might sustain by reason of the issuing of the attachment if the plaintiff should fail to recover judgment in the suit. Plessner, after his stock was attached, employed counsel to move for a dissolution of the attachment, and this was done successfully, and the attachment suit failed. His counsel charged him twenty-five dollars for services in obtaining a dissolution of the attachment.

This suit is brought upon the attachment bond, and the questions raised concern the measure of damages. It is conceded that the officer took from the shop seventeen dollars with which Swift must be charged. The court below directed the jury to allow a reasonable attorney fee on the application to dissolve the attachment, and also instructed the jury as follows:

"You should also take into consideration whether there was any loss or injury to the business during the period defendants were in possession under the writ of attachment, and if you shall find it was an injury, you should allow such sum as shall be fair and right and just--not too large nor too little; and for that purpose you will look at all the testimony that has been presented, and arrive at it in such a way that you shall think it just."

There was evidence from which the inference was admissible that Plessner's sales were diminished during the possession of the keeper, and that an actual loss resulted to him in consequence. The defendants requested the court to submit to the jury the following questions:

1. What amount of profits, if any, did the plaintiff lose during the time the keeper was in possession?

2. What would the profits of the plaintiff's business have been during the time the keeper was in charge, had he not been disturbed in possession?

3. What were the profits received and turned over to the plaintiff during the time the keeper was in charge?

The court refused to submit these questions, but left the case to the jury for a general verdict, and they awarded the plaintiff the sum of $ 102. As it is reasonable to infer that the...