Meysenburg v. Schlieper

Currier, Judge,

delivered the opinion of the court.

Windeek &. Luebering conveyed the real and personal property described in the petition to the defendant Borg, in trust to secure the payment of certain notes. The said estate was at the time subject to a prior deed of trust in favor of a third party. Subsequently Windeek conveyed his remaining interest in the property, in trust to secure a debt due plaintiff Sternberg.

The personal property included in the second or Borg deed of trust was advertised for sale under that deed, the sale to occur June 26, 1868, one of the notes secured by it having matured, and default having been made in the payment of it. The plaintiffs stopped the sale by injunction, and the injunction was not removed until November 6, 1868. After the injunction was dissolved Borg again advertised, but the sale was again interrupted by a second injunction, which was also sued out by the plaintiffs. This second injunction was laid December 1, 1868, and dissolved May 15, 1869, the first suit in the meanwhile having been dismissed.

Subsequently to the dissolution of these injunctions, the court assessed the defendants- damages- as follows : Under the first at $2,450 ; and under the second, $773.63. The plaintiffs complain of these assessments as having been made under erroneous principles, and seek a reversal on that ground. The two cases were tried together in the court below, and have been so argued and submitted here.

The Circuit Court assessed the damages upon the principle that the plaintiffs were liable for the depreciation in the salable value of the property during the period the sale was suspended by the injunctions as well as for the costs and expenses incurred in defending against the injunction suits. The court also seems to have taken into consideration, in assessing the damages, the depreciation upon certain articles of property which the plaintiffs insist had been attached to the realty as fixtures, and had thus *431 ceased, as tbe plaintiffs claim, to be personal estate. It is tbe action o£ tbe court in making these assessments that tbe plaintiffs object to and complain of as erroneous.

Prior to either of these injunctions Windeck & Luebering bad become insolvent, so that the only reliance for tbe payment of tbe notes secured by tbe Borg deed of trust was the security furnished by that deed. One of tbe notes thus secured, and a year’s interest on tbe remaining notes, became due the last of May, 1868 ; and tbe property in question, as we have seen, was advertised for sale under the Borg deed of trust on tbe 26th of June of that year. Had the sale been made as advertised, it satisfactorily appears that tbe whole debt secured by that deed would have been paid from the proceeds of the sale, and from the surplus arising from the sale of the real estate under the first deed of trust; the Borg deed of trust being the second encumbrance upon the realty, and the-first upon the personalty.

The personal property, on the 26th of June, 1868, as the evidence shows, was well worth, and would have sold on that day, for at least $4,000. The sale, however, was delayed by the injunctions so that it did not oocur until July, 1869, when the property was duly advertised and sold for $1,550, the plaintiff (Sternberg) becoming the purchaser. This result indicates depreciation in the salable value of the property of $2,500. On whom should this loss fall? Was it, in the language of the statute (Glen. Stat. 1865, p. 667, § 11), “ occasioned” by the injunctions ? If it was, the plaintiffs should pay it, and the judgment of the Circuit Court so awarding should be affirmed; otherwise, the judgment should be reversed.

In opposition to this view, the plaintiffs’ counsel insist that the depreciation ought not to be taken into consideration, since, as he claims, the injunctions were not the direct cause of the depreciation. However that may be, the injunctions indisputably delayed the sale for nearly a year, and the $2,500 loss was an incident of that delay. The injunctions, therefore, were the “occasion” of the supposed loss. In cases such as‘this the damages are to be measured 'by the extent of the “ injury the creditor has sustained from the improper'act of the party in

*432 stepping in between the creditor and his debtor,” and thus postponing the enforcement of the creditor’s rights. (City of St. Louis v. Alexander, 23 Mo. 522 .) If property is deteriorated or destroyed during the suspension caused by an unwarranted injunction, the loss thence resulting is to be considered in assessing damages. (Kennedy’s Adm’r v. Hammond, 16 Mo. 341 ; Middlesburger v. McDaniels, 38 Mo. 142 .) The depreciation in the salable value of property occurring under the same circumstances falls within the same principle.

It has already appeared that the first injunction was dissolved November 6, 1868, and the seoond May 15, 1869. On the 3d of December, 1868, the defendant Schlieper, the creditor under the Borg deed of trust, was paid $3,719.85, that being the surplus arising from the sale of the real estate under the first deed of trust. Schlieper’s was the second encumbrance, and so entitled to that surplus.. The $3,719.85 exceeded the amount then due upon Schlieper’s notes, as shown by the notes, apart from the deed of trust. On that fact the plaintiffs found the theory that all right to sell under the deed of trust was suspended as from, the beginning, and irrespective of the injunction, till the maturity of the note next falling due, to-wit: May 28,1869. The injunctions were removed prior to that date, and it is accordingly argued that the injury resulting from the depreciation of the property is not traceable to any delay caused by the injunctions.

This view of the matter involves an examination of the provisions of the deed of trust bearing upon the construction of the notes, as respects the date of their maturity. The deed provided that “ in case the property should be sold on account of the nonpayment of any one of said notes, or the interest on any one of them, then all the notes should be considered due and payable” from the date of sale. The deed further authorized a sale of the property, or any part of it, if the notes or any one of them, or any part of the interest, should become due and remain unpaid.

Twenty-thnee hundred and ten dollars of principal and interest became due in May, 1868, and the property was accordingly duly advertised for sale on the 26th of the following June, in accordance with the terms of the deed. The sale, however, as we have *433 seen, was prevented by the wrongful interference of the plaintiffs. At that time Borg had an undoubted right to sell the property, and the whole of it, and apply the proceeds to the payment of the notes, whether due upon their face or not. For the purpose of foreclosing the deed of trust, the notes, as the deed provided, were to be considered and treated as falling due upon the occurrence oE the first default. By the terms of the deed it was the right of Borg to sell the property and pay the notes as. far as the proceeds would go, although only one of them might, according totheirterms, be actually overdue. He sought to avail himself of this right, but was defeated by.the wrongful acts of the plaintiffs. They wrongfully interposed and stopped the sale, and now urge the non-occurrence of the sale as a reason why they should not be held to liability. Is it warrantable for them thus to take advantage of their own wrong? I think not. They wrongfully-stopped the sale, and the consequences of that wrongful aet they must meet and bear. If the notes did not all become due and payable on the 26th of June, 1868, it was because of their unjustifiable interference. Their interference was not only the occasion but the primary cause of the loss and damage for which the defendants now seek compensation.

The sales did not in fact occur as originally advertised; therefore, say the plaintiffs, only one note and the interest was due and payable, and so much was actually paid (the plaintiffs insist) from the proceeds of the sale of the real estate under the first deed of trust, prior to the maturity of the note next falling due. But the sale did not occur as advertised because the plaintiffs enjoined it. The non-occurrence of the sale was one of the consequences of the injunction. The defendants were injuriously affected thereby, and the plaintiffs must make good the loss. If an actual sale was, as the plaintiffs claim, a necessary condition to the maturity of the notes not due upon their face, the plaintiffs prevented the performance, of that condition, and are therefore not in a position to urge its non-performance as a reason why they should not be held liable. It is laid down as a “general principle that he who prevents a thing from being done shall not avail.himself of the non-performance which *434 he occasioned.” (Majors v. Hickman, 2 Bibb, 219 ; id. 431; Clendenin v. Paulsel, 3 Mo. 230 .)

In my judgment these just principles should be applied to the causes under consideration. The previous litigation (see 46 Mo. 209 ) has established the proposition that the plaintiffs had no right to interfere, and the evidence shows that their interference resulted in the damages assessed against them. The principles involved apply to both injunctions, the second as well as the first. On the 1st of December, 1868, nothing had been paid, and the defendants might then have sold but for the injunction which the plaintiffs wrongfully interposed on that occasion.

To sum up on this point: The property was advertised for sale June 26, 1868, and would have been sold on that day but for the first injunction. Upon the dissolution of that injunction the property was again advertised for sale December 1, 1868, and would-have been sold on that day but for the second injunction. These injunctions were wrongful, and suspended the sale for a year, during which period the property greatly depreciated in its salable value, to the manifest injury of the defendants. The injunctions caused the delay, and the delay resulted in loss. The injunctions, therefore, if not the direct cause of the loss, were at least the “ occasion” of it, and it is but simple justice that the plaintiffs should respond in damages.

But it is urged by the plaintiffs that the depreciation was assessed in part upon an engine, etc., which, as they claim, had been attached to the realty as permanent fixtures. Assuming this to be true, the plaintiffs then insist that the title to the engine, etc., was transferred by the sale of the real estate under the first deed of trust, and thus wholly withdrawn from sale under the Borg deed of trust.

The theory is well; but the plaintiffs, in order to maintain it, are obliged to assume a state of facts in direct conflict with the averments of -their petition. It is averi’ed in the petition that the engine, as - also the other articles now claimed to have been fixtures, were.,, “ personal property.” If personal property, they constitute no part of the-real estate, either as fixtures or otherwise.- The claim that the engine, etc., were fixtures is an after *435 thought, and one that cannot be harmonized with the allegations of the petition.

Again, the court below declared the law in relation to fixtures precisely as the plaintiffs requested, but the facts were found against them, and I see no occasion for interfering with the result. The property was treated on all hands and by all parties, as far as appears, as personal property.

The other judges concurring,

the judgment will be affirmed.