Winstead v. Hulme

The opinion of the court was delivered by Horton, C. J.:

This was an action by defendant in error, plaintiff below, against plaintiff in error, defendant below, to recover the possession of certain goods and merchandise of the value of $270.65. The petition also alleged that by the unwarranted and unlawful seizure of the goods and merchandise, the defendant was damaged in his business in the sum of $2,300. The prayer of the petition was for the possession of the goods and merchandise and for $2,300 damages. At the time this action was commenced, the defendant below was sheriff of Barton county, and, as sheriff, had in his hands three executions against the firm of Baum & Baum. To satisfy these executions, by the direction of the creditors of said firm he levied upon the personal property in controversy as belonging to them, but which at the time of the levy was in the hands of the plaintiff below, who claimed to be the absolute owner of a portion of the property, and claimed the greater portion under a chattel mortgage given by Baum & Baiun to Hulme and Negbaur.

*573 Upon the trial, the court permitted plain1¿ff below to give evidence that he expected to pay his attorney $100 for the prosecution of the action; that he was damaged in the sum of $150 on account of the time he was obliged to give to the matters connected with the action; that his credit was damaged by the levy in the sum of $400. The court refused to instruct the jury that the plaintiff below was not entitled to attorney’s fees incurred in conducting the suit; refused to infract the jury not to allow plaintiff below any damages for loss of his time spent in and about the suit; and refused to instruct the jury not to allow any damages unless definitely proved.

On the other hand, the court directed the jury as follows :

“If you are satisfied that the plaintiff has the right to recover the property sued for in this case, then I charge you that he has a light to recover as damages for the taking and detention of said property, such actual damages as from the evidence you believe he has sustained, including such cost and expense as he necessarily incurred to recover the property back and place it in the position in which it was when taken.”

This instruction, in view of the evidence, was misleading, and therefore erroneous. In an action of this kind, unless the elements of malice, gross negligence or oppression mingle in the controversy, the law does not allow the jury to find what are termed exemplary or vindictive damages. As evidence was before the jury tending to prove the attorney’s fees of plaintiff below, the amount claimed by him for compensation for attending the action and the damages to his credit, the jury may have supposed, under the direction given, that these sums were actual damages which the plaintiff below was entitled to recover. A sheriff, in seizing goods under a writ of execution, is responsible in damages if he takes the goods of the wrong person; and if acting under color of process he is guilty of fraud, malice, gross negligence, or oppression in the execution of the process, he may be held liable in exemplary damages. (Wiley v. Keokuk, 6 Kas. 94 ; Nightingale v. Seannell, 18 Cal. 315 ; Cable v. Dakin, 20 Wend. 172 .) But where a sheriff wrongfully seizes property upon an exe *574 cution in his hands and there is no malice, gross negligence, oppression or improper motive on his part in the seizure, he is not liable in exemplary or vindictive damages. (Wiley v. Keokuk, supra; Phelps v. Owens, 12 Gal. 22; Dorsey v. Manlove, 14 id. 553; Nightingale v. Scannell, supra; Bell v. Campbell, 17 Kas. 212 , and cases cited.) Therefore, if in this case exemplary damages were allowable on account of the conduct of the officer, the court should have expressly directed the jury not to allow such damages, unless the sheriff was guilty of fraud, malice, or willful wrong. If exemplary damages were not allowable, the jury should not have considered, in assessing damages, the evidence concerning the attorney’s fees, the compensation for attending the action, or the alleged damage to the credit of plaintiff below. Attorney’s fees are not recoverable in an action of this kind where no malice or willful wrong is proved. If, upon a retrial, it shall appear from the facts that it cannot be reasonably inferred that the conduct of the sheriff was influenced by any improper motive, the jury must disregard all the evidence of the special damages heretofore referred to. Under the pretext of recovering actual damages, a party cannot recover exemplary or vindictive damages; that is, damages inflicted by way of penalty or punishment. '

The case of Tyler v. Safford, 31 Kas. 608 , to which we are referred, is not in point, because that was an action brought upon an attachment undertaking, and the measure of damages in such a case is different from one of this character. One purpose of the execution of the instrument was to secure Hulme and Negbaur harmless and free from all expenses, damages and costs connected with the signing of the redelivery bond; but another purpose in the execution of this instrument seems to have been to withdraw all the property of the mortgagors or assignors from the reach of their cz*editors. The liability of Hulme and Negbaur at most would be the amount of the debt owing to Buford & Co., by Baum & Baum, which was $1,900, and the interest and costs of the suit. (Wolfley v. Rising, 13 Kas. 535 .) The goods assigned were of the value of $10,030.47. *575 Tbe instrument conveyed all the personal property owned by Baum & Baum not exempt by law. Thereby Hulme '& Negbaur were given the exclusive possession of all the goods and merchandise of Baum & Baum, and were authorized to proceed to sell them in such a manner as they might deem advisable for securing the most money therefor. They were empowered to conduct the business of the sale of the goods at the old stand of the firm, or at such other place as they might deem best for all concerned. It was also provided that the proceeds of the sale of the .goods and all the goods remaining unsold were to be kept by Hulme & Negbaur until the case of Buford & Co. v. Baum & Baum was finally decided, and until all the costs and expenses of Hulme & Negbaur were fully settled. At the time of the execution of this instrument, Baum & Baum were indebted to various parties other than Buford & Co. It also appears in evidence that when Hulme removed the goods and merchandise from Baum’s store to his own he scratched the letters (B. & B.) from many of the articles and mixed them with his own; that he did this to discourage and prevent the creditors of Baum & Baum from attempting to levy upon the goods; that when defendant below asked him to point out the Baum & Baum goods, he claimed to own them all.

Considering the terms of the instrument and the acts of the parties, it appears to us that the instrument was executed in part with the intention, participated in by both parties, to delay, hinder and defraud the creditors of Baum & Baum by tieing up the property of the latter firm for an indefinite time beyond the reach of their creditors. Therefore, in our opinion, it is fraudulent in toto, and cannot be supported to any extent as against such creditors. It cannot be supported even to the extent of securing Hulme & Negbaur for signing the redelivery bond executed by them. (Comp. Laws of 1879, ch. 43, §2.)

In Wallach v. Wylie, 28 Kas. 138 , we held that a chattel mortgage purporting to secure $7,920 of indebtedness, when there was in fact only $3,000 of such amount bona fide, 'was fraudulent as against the creditors and therefore void in toto. *576 So here. Although one object in making the written assignment was to indemnify the mortgagees or assignees against possible liability on a redelivery bond, yet as another and 'important object of the instrument, participated in by both parties, was to delay, hinder and defraud the creditors of the mortgagors or assignors, it is also fraudulent in tolo.

The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. ’

All the Justices concurring.