The Empire Mill Company v. Lovell

• Decision Date: 31 January 1889
• Parties: THE EMPIRE MILL COMPANY v. LOVELL
• Court: Iowa Supreme Court

41 N.W. 583

77 Iowa 100

THE EMPIRE MILL COMPANY v. LOVELL

Supreme Court of Iowa, Des Moines

January 31, 1889

Decided January, 1889.

Appeal from Wright District Court.--HON. S. M. WEAVER, Judge.

PLAINTIFF brought suit on a money demand, and sued out a writ of attachment. Defendant pleaded a counter-claim on the attachment bond for the wrongful suing out of the writ, on which he recovered. Plaintiff appeals.

REVERSED.

Pillsbury Moats & Moats, for appellant.

Cook & Filkins and J. G. McOllough, for appellee.

OPINION

REED C. J.

I.

The property seized on the attachment was a stock of merchandise. On the day following that on which the writ was levied defendant confessed judgment in favor of another creditor. An execution issued on that judgment was levied on the stock, and it was sold thereon; and at the time of the trial the proceeds were held by the sheriff to be applied as the court might direct. The court instructed that, if the attachment was wrongfully sued out, the measure of defendant's actual damages would be the fair market value of the property at the time of the seizure. We are of the opinion that the rule adopted by the court on that question is erroneous. The injustice which would result from the application of such a rule is well illustrated by the present case. By the verdict and judgment defendant recovers the full value of the property, which is in excess of the amount of his indebtedness to plaintiffs; the judgment being in his favor for the difference between those amounts. He also has the benefit of the proceeds of the sale, which may now be applied in satisfaction of the judgment in favor of the other creditor. The proceeds amounted to about one-half the value of the goods as shown by the invoice taken when the seizure was made; and the result, under the rule, is that while, by the findings of the jury, the issuance of the writ was wrongful, defendant has been benefited by the seizure to the extent of one-half the value of the property taken; and the same result would have followed if the sale had been made under the attachment because of the perishable character of the goods. The debt to plaintiff would have been extinguished by the assessment against him of the value of the property at the time of the seizure, while the proceeds of the sale would have gone to defendant. It is manifest that in either case his recovery because of the wrong done him by the seizure of his property would be in excess of the actual damages caused by the act. But the true measure of his actual damages is such sum as will compensate him for the injury; and in the present case that sum could not exceed the difference between the market value of the property at the time of the seizure and the amount realized from the sale; and the rule would be the same if the difference should be less than the amount of the indebtedness to plaintiff, and a...