Tripp v. Grouner
| Decision Date | 30 September 1871 |
| Citation | 60 Ill. 474,1871 WL 8174 |
| Parties | JOSEPH TRIPP et al.v.EDWARD GROUNER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.
Mr. THEODORE SCHINTZ, for the appellants.
Messrs. COOPER & PACKARD, for the appellee.
This was an action on the case, brought by Grouner against Tripp, Friedrick & Michelson, to recover damages on account of alleged irregularities in conducting a distress of certain personal property which was distrained and sold, for rent due to Friedrick, by virtue of a distress warrant.
Michelson was the constable who distrained and made the sale. Tripp was a land agent, and agent of Friedrick for the collection of his rent, and had direction of the proceeding. Friedrick, the landlord, does not appear to have had any active participation in it, being absent from town when the distress was made, and Tripp signing his name to the distress warrant, though Tripp testifies he had authority to do so, and that the sale was by authority of Friedrick.
The irregularities complained of are, refusing to restore the property after tender of the rent in arrear and costs, and making sale of it without an appraisement.
There are three counts in the declaration, upon which the cause was finally tried: two for not restoring the property after the alleged tender, and the other in trover.
The first point made by the appellants is, that the counts are not maintainable for these irregularities.
It is deemed only necessary to consider whether trover lies for not making the appraisement, as, if it does, a recovery may be supported under that count.
The statute enabling sale to be made of goods distrained for rent, provides that, in case of a distraint and failure to replevy, “the person distraining, or his agent duly authorized, may, with the sheriff or constable of the county, cause the goods and chattels so distrained to be appraised by two reputable freeholders, under oath, which oath may be administered by such sheriff or constable, to appraise said goods and chattels,” and then provides, after having obtained the assessment of the amount of rent due, as directed in a former section, that he may sell such goods and chattels.
The statute, in giving this power to make sale, regulates the mode of its exercise; and it prescribes, as one regulation, that this appraisement shall be had. We regard a compliance with this requirement of the statute as essential to authorize a sale, and that a sale of the distrained goods without such appraisement subjects the party making it to liability in an action of trover as for a wrongful disposition of the property.
The cases cited to the contrary seem to be cases arising under the statute of 11 Geo. 2, c. 19, sec. 19, and other similar statutes, taking away this species of action for an irregularity in the disposition of a distress.
A remaining question is made upon the subject of damages: that erroneous instructions were given in respect to them, and that they are excessive.
By the first and second instructions, the court laid down the measure of damages to be the actual value of the goods at the time of the conversion. Such is the general rule, but it has its exceptions and qualifications. The justice before whom the proceeding was had, assessed the amount of rent due $85, and $15.20 costs. This amount of the plaintiff's indebtedness, $100.20, was discharged by the produce of the sale, and we are of opinion that in this case a deduction of at least the sum of $85 of rent discharged should have been made from the measure of damages as laid down. Pierce v. Benjamin, 14 Pick. 356.
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