
    LOUISA D. WEHLE, Plaintiff and Respondent, v. HENRY L. BUTLER et al., Defendants and Appellants.
    In an action to recover damages for the unlawful conversion of goods, wares, and merchandise, evidence of the value of the same at retail is admissible, although by no means conclusive.
    Interest on the value of the property from the time of the conversion is as necessary part of complete indemnity as the value itself. (Andrews v. Durant, 18 IV. Y. 496.)
    Attachments set aside for irregularity afford no protection to creditors or parties who procured them to be issued, for the taking and detention of property under the same. Such protection extends only to the officer who acted under them in the discharge of his public duty. The moment they were vacated, the creditors or parties stood in the same position as if they had never issued, and they became trespassers ab initio. (Lyon v. Tates, 52 Barb. 237; Kerr v. Mount, 28 IV. Y. 659.)
    Where the evidence established that all the attaching parties participated actively in the seizure and removal of the goods, without in any manner separating their respective acts, they must be regarded as joint trespassers, and their liability is joint and several at plaintiff’s election. (Creed v. Hartmann, 29 IV Y. 591; Kasson v. The People, 44 Barb. 347.)
    A Vrong-doer cannot discharge himself by any act of his own without the assent of the injured party. An exception to this rule, or a distinction therefrom, may be made in a case where it appears that the property was taken from the trespasser without any agency, act, or connivance on
    
    
      7¿zs parí, and applied to the owner’s use, although without the latter’s consent, by the act of a third person and the operation of law. In this class of cases' the court or jury should take these facts into consideration and allowance in the estimation of plaintiff’s damages.
    Before Barbour, Ch. J., and Monell and Freedman, JJ.
    
      Decided March 2, 1872.
    This was an appeal from a judgment recovered Tby the plaintiff for the value of a stock of goods, taken Tby virtue of void attachments issued on application of the defendants out of the Marine Court.
    The answer of the defendants contained a general de nial.
    Upon.the trial it appeared that on the 8th day of December, 1889, six warrants of attachment were issued by one of the justices of the Marine Court, at the instance of the defendants, Butler, Broome & Clapp, as alleged creditors of the plaintiff, and seven other warrants in favor of Spelman & Sons and Haviland, Lindsley & Co., other alleged creditors of the plaintiff, against the property of the said plaintiff; that on the same day the thirteen warrants were received by the sheriff, that the latter, accompanied by the defendant Henry L. Butler, of defendants’ firm ; Mr. Haviland and Mr. Lindsley, of the firm -of Haviland, Lindsley & Co.; Mr. Holbrook, representing the firm of J. B. Spelman & Sons, and other parties proceeded to plaintiff’s store after ten o’clock in the evening of the same day, served all the attachments at the same time, seized the entire contents of plaintiff’s store, and caused them to be carted in the middle of the night to a stable in Thirty-first Street, whereby plaintiff’s business was completely broken up. In reply to plaintiff’s remonstrances against the removal of the goods, the sheriff assured her that he had plenty of bonds, and that the attachment creditors were responsible parties. All the parties named assisted in the removal of the goods to the stable, Butler, Holbrook, and Lindsley following* the carts to see that nothing got lost. The goods were subsequently taken from the stable to defendants’ store on Broadway, where they remained nominally in the custody of the sheriff for about six weeks.
    It also appeared that the sheriff made a separate return to each of the six attachments issued at the instance of the defendants, certifying upon the back of each of them that by virtue of the within attachment he did attach and take into his custody the goods and chattels of the said Wehle, and made an inventory of the same. The inventory reads as follows :
    
      ‘ ‘ Inventory of property attached December 8th, 1869.
    “Dress goods.
    “ Domestic goods.
    ‘1 Flannels.
    “Fixtures, etc.
    “ Value at about $1,000.”
    A similar return was made to each of the other attachments issued in favor of the other creditors.
    On the 13th day of December, 1869, on a motion to vacate founded on the attachments, the return of the sheriff thereon, and the affidavits on which the attachments were issued, the six attachments obtained by the defendants were vacated and set aside by order of the Marine Court, with costs to the defendant named therein (Wehle).
    At the same time the seven other attachments, in favor of the other creditors, were vacated, with costs for irregularity.
    Plaintiff therefore demanded a return of her goods, but defendants refused, and the goods were finally sold on the 28th of January, 1870, at sheriff’s sale, under some execution which the defendants issued.
    Defendants’ counsel offered to prove (it being assumed and agreed that the witness and the papers were in court), ‘ ‘ that after these actions had terminated in the 11 Marine Court, and before the commencement of this ‘ ‘ action, actions were commenced in the Court of Com“mon Pleas, between the same parties, and ag’ainst the “ property of said Louisa Douai Wehle, duly and regularly issued therein, on the ground that the defend- •“ ant in that suit (the plaintiff in this suit) had disposed “of property, to defraud creditors ; and that thereunder “the goods in question were seized by the sheriff; “that a motion was made to vacate those attachments “and denied; and that the said attachments stand to- “ daywhich was objected to, except the fact that the actions in the Marine Court had terminated, which was admitted by both sides.
    The court excluded the evidence, and defendants excepted.
    The value of the goods taken was variously estimated from $2,000 to $10,000, and on that point the testimony was highly contradictory. Defendants showed, among other things, that at the sheriff’s sale the goods brought $2,187.94. The plaintiff, in rebuttal, recalled a witness who had personal knowledge of the condition and value of the goods in question, and put the following question:
    Q. What would the goods that you have on this list (sheriff’s list) sell for, in your store, at retail ?
    The defendants objected, but the court admitted the question, and defendants excepted.
    At the close of the testimony on both sides, defendants’ counsel asked the court to direct a verdict for the defendants.
    The court declined, and defendants excepted.
    The court charged the jury, that the only question for them to consider was the value of the goods taken from the plaintiff under defendants’ attachments, and that should be the fair retail market value of the goods on the 8th day of December, 1869, with interest to the present day.
    Defendants excepted to that part of the charge wherein the court instructed the jury that the only question for them to consider was as to the value of the goods.
    The jury rendered a verdict for the plaintiff for $4,950.
    Defendants moved for a new trial upon the minutes of the court, which motion was denied, and defendants excepted.
    Judgment was entered upon the verdict, in favor of the plaintiff, for $5,387.44, and from that the appellants appealed.
    
      C. Bainbridge Smith, counsel for appellants.
    
      Charles Wehle, counsel for respondent.
   By the Court.

Freedmax, J.—The appeal being from the judgment merely, the only questions open for review are the questions of law arising upon the exceptions taken by the defendants upon the trial.

Under the issues raised by the pleadings and the testimony given on the trial on both sides, the evidence as to the retail value of the goods taken was properly admitted. It was, under the circumstances, competent, although by no means conclusive. A question of a more serious character would arise upon that part of the charge, in which the court laid down the rule that the value of the goods taken should be the fair retail market value of the goods on the 8th day of December, 1869, with interest thereon, if the defendants had taken a proper exception to it at the time. But as they acquiesced in it by excepting only to so much of the charge as instructed the jury that the only question "for them to consider was as to the value of the goods, they cannot now be permitted to urge for the first time that the court erred in that respect.

The same remarks apply to the attempt of defendants’ counsel to convince us upon the argument, that the court below erred in directing the jury to allow interest on the value of the goods, for the reason, that in all cases of this nature, interest constitutes an item of damage in the discretion of the jury. But independent of that consideration, it may be well to point to the fact that the proposition here contended for has been expressly repudiated in this State. “ Interest on the value at the time of the conversion,” says Johnson, 0. J., in delivering the opinion of the Court of Appeals in the case of Andrews n. Durant, 18 A7! Y. 496, “is as necessary a part of complete indemnity as the value itself. There is no sense in the idea that interest is any more in the discretion of the jury than the value.”

Two questions, therefore, remain to be considered:

1. The effect of the simultaneous levy under the thirteen attachments upon the separate liability of the defendants in this action, and,

2. The admissibility or non-admissibility of the evidence showing a subsequent seizure under process claimed to have been valid, which was offered by the defendants and rejected by the court.

As to the first: The action was one sounding in tort. It was trespass for wrongfully taking and carrying away plaintiff’s goods and breaking up her business. The attachments, under cover of which the goods were taken in the first instance, having been set aside for irregularity, they afford no shield or protection whatever for such taking to the creditors who procured them to be issued. Such protection extends only to the officer while acting under them in the discharge of his public duty. The moment they were set aside, the creditors stood as though no process had ever been issued, and became trespassers ab initio. (Lyon v. Yates, 52 Barb. 237; Kerr v. Mount, 28 N. Y. 659.) And as the evidence plainly establishes that all attaching creditors actively participated in the seizure and removal of plaintiff’s entire stock at one and the same time, without separating their respective proceedings, and there being no evidence from which the extent of the separate liability of any one of them can be ascertained, they must, in the aspect of the case in which the question is presented by the appellants, be deemed, for the purposes of this case at least, to have been joint tortfeasors, and as such their liability is joint and several and enforceable," accordingly at plaintiff’s election (Creed v. Hartmann, 29 N. Y. 591, affirming S. C., 8 Bosw. 123; Kasson v. The People, 44 Barb. 347).

In such cases, an answer pleading a former recovery against one, to be good, must also aver actual satisfaction (Phil, on Ev. 5th Ed., Vol. II., p. 114 [* 134]; Wies v. Fanning, 9 How. 546).

In the case at bar no such issue was raised by the pleadings, and if there had been, there was no evidence to support it. On the contrary, the evidence showed not only that the defendants were very active in enforcing the levy and removal of the goods in the unusual and oppressive manner, in which they were seized and removed, but, in addition, that all of plaintiff’s goods were taken to defendants’ store, kept there for weeks after the attachments had been" vacated and the return of the goods demanded, and finally sold for defendants’ exclusive benefit, under an execution subsequently procured by them in some way, which is not specified.

The bare fact of the existence and simultaneous but fruitless levy of the attachments issued by the other creditors, cannot, therefore, be made available to the defendants in this action in any aspect of the case.

As to the second: To properly determine this question it is necessary to inquire whether a tortfeasor, who has taken property by a wrongful act, can subsequently apply the same on legal process issued in his own favor and against the owner, and, if he cannot, under what circumstances and to what extent he may be permitted to show that the. same property was taken from him again by a third party.

In Hanmer v. Wilsey, 17 Wend. 91, it was held,- that a return of property illegally taken, though accepted by the owner, is no bar to an action, the return and acceptance being available only in mitigation of damages. But, even for that purpose, it is not admissible to show that property illegally taken was subsequently applied, without the assent of the owner, in satisfaction of a valid execution against him.

In Otis v. Jones, 21 Wend. 394, some horses taken under an attachment issued in an action, which the plaintiff found himself compelled to discontinue, were subsequently sold under an execution issued in another action for the benefit of the same party. The judge at the circuit ruled that the effect of the sale, which was legal, was to mitigate the damages, and prevented the plaintiff from recovering any more than nominal damages. But, on appeal, the court repudiated this doctrine, reaffirmed the principle enunciated in Hanmer v. Wilsey, 17 Wend. 91, and expressly held, that a wrongdoer cannot discharge himself by any act of his own, without the assent of the injured party. By procuring a subsequent sale on legal process, the defendant cannot be better off than he would be if he had offered to restore the property to the plaintiff. And yet no tender will, at the common law, either bar an action for a tort, or take away the right to full compensation in damages.

The decisions in Lyon v. Yates, 52 Barb. 237, and Peak v. Lemon, 1 Lansing, 295, are to precisely the same effect.

A distinction, however, was made whenever it appeared that the property was taken again from the trespasser, without any agency or connivance on his part, and applied to the owner’s use, although without the latter’s consent, hy the act of a third person aud the operation of law. In this class of cases the jury were permitted to take the taking of the goods by such third party, and their application to plaintiff’s use, into the account in estimating plaintiff’s damages. But at the same time it was deemed necessary in every instance that it should.appear that the subsequent taking by such third party was independent of any agency on the part of the defendant, and that there was in point of fact an application to plaintiff’s use (Higgins v. Whitney, 24 Wend. 379; Sherry v. Schuyler, 2 Hill, 204; Ball v, Liney, 44 Barb. 505; Ward v. Benson, 31 How. 411).

How, the offer made by the defendants to prove (“it “being assumed and agreed that the witness and the “papers are in court) that after these actions had ter - “minated in the Marine Court, and before the com“mencement of this action, actions were commenced in “the Court of Common Pleas, between the same par“ties, and against the property of said Louisa Bouai “ Wehle, duly and regularly issued therein, on the “ground that the defendant in that suit (the plaintiff in “this suit) had disposed of property, to defraud credi- “ tors ; and that thereunder the goods in question were “ seized by the sheriff; that a motion was made to va- “ cate those attachments and denied ; and that the said “ attachments stand to-day,” was rather vague. It may be questionable whether the words “between the same parties,” mean only the parties to this action, or all the creditors named in the first thirteen attachments and the plaintiff herein. Supposing the first to be the case, it is quite clear, upon the authorities already examined, that the defendants cannot be permitted to defend, either in whole or in part, the trespass committed by them by proof of a subsequent appropriation of the property to plaintiff’s use, but without her consent, under an execution procured in their own favor. And if the second is assumed to be the case, the same objection seems to apply with equal force to all the attaching creditors. Having been jointly concerned, for the purposes of this action at least, in the commission of a wrong, and being jointly and severally liable therefor at plaintiff’s election, they were all alike incapacitated from making a subsequent legal appropriation of plaintiff’s property, either for their joint account, or for account of any one of their number, without plaintiff’ s assent. To hold otherwise would be to hold, in effect, that one of a number of joint tort-feasors may escape liability by inducing any one of his confederates to do what he is not permitted to do. But inasmuch as the testimony given on behalf of the defendants shows that the defendants were, as already stated, the only ones that derived any benefit from the taking of plaintiff’ s property, and that there has been no appropriation of the same in point of fact to plaintiff’s use under legal process subsequently procured by the other creditors, and inasmuch as the court below charged the jury to consider the value of the goods taken from plaintiff under defendants’ attachments, and the jury must be presumed to have found in accordance with such instruction, it is unnecessary to pursue this line of inquiry any further.

Another grave objection to the receipt of the proposed evidence in this action is, that, even if its sufficiency as a subsequent legal appropriation to plaintiff’s use as well as its competency be assumed, it is not pertinent to any of the issues raised by the pleadings, because not pleaded. Defendants’ counsel, it is true, strenuously argued that it should have been received at least in mitigation of damages, and that for that purpose it did not require being pleaded. But on a critical examination this claim also will be found to be untenable. Mitigating circumstances do not, and never did, amount to a defence to any part of plaintiff’s claim. They may diminish the nominal claim made by him, but do not diminish the real claim, or reduce it below what it was originally.

A defence, as understood in law language on the other hand, is a full answer to the whole or some part of plaintiff’s demand.

Under the old practice, both were admissible under the general issue without being pleaded, and this fact led to a frequent confusion of the distinction, to some extent at least, between partial defences and circumstances of mitigation (Harter v. Crill, 33 Barb. 283).

How the evidence which was proposed and excluded in this case, did not in any wise tend to mitigate the trespass, nor to diminish plaintiff’s claim, whether nominally made too large or not, for in such case the law itself prescribes the true measure, and a certain definite measure, of damages; it did not consist of circumstances which existed at the time of the commission of the trespass, and possessed a mitigating or extenuating character; that as such could be considered in the estimation of plaintiff’s loss, which had then fully accrued; but it was offered for the purpose of bringing about, when received, a reduction, not of plaintiff’s claim, but of plaintiff s recovery. Whether it be considered, therefore, as a set-off, or as matter of avoidance or in bar, in full or pro tanto, it was equally new matter purporting to constitute at least a partial defence, and as such should have been set up in the answer (Code, %% 149, 150).

It is indeed somewhat remarkable, that no case can be found in the books in which this precise question has been determined. The cases of Higgins n. Whitney, and Sherry v. Schuyler, above cited, occurred before the Code. In Ball v. Liney, 44 Barb. 505, the answer did contain all necessary averments, showing a full and complete appropriation to plaintiff’s use, and that the pleader must have been equally careful and precise in Ward v. Benson, 31 How. 411, is apparent from the report of the whole case: But if any authority be needed, it will be found that the principle of the decision of the Court of Appeals in McKyring v. Bull, 16 N. Y. 297, is fully applicable to the present case. Seldeu, J., in delivering the opinion of the court in that case, in the course of which he extensively reviewed the decisions of the English courts upon this subject, as well as the qhanges effected by the Code, concludes as follows:

“My conclusion, therefore, is, that section 149 of the “ Code should be so construed as to require the defendants, in all cases, to plead any new matter con“stituting either an entire or partial defence, and to “prohibit them from giving such matter in evidence “ upon the assessment of damages, when not set up in the “ answer. Not only payment, therefore, in whole or in “part, but release, accord and satisfaction, arbitra“meet, etc., which may still, for aught I see, be made “ available in England, in mitigation of damages, with- “ out plea, must here be pleaded.

(See also, Foland v. Johnson, 16 Abb. 235; Beckett v. Lawrence, 7 Abb. N. S. 403; Bush v. Prosser, 11 N. Y. 347 [352], and Smith v. Reeves, 33 How. 183.)

The evidence embraced in defendants’ offer was properly excluded, therefore, as not pertinent to the issues raised by the pleadings.

It appearing, as the final result of this examination, that none of the exceptions taken by defendants can be sustained in law, the judgment appealed from must be affirmed with costs.

Monell, J. (concurring).

It does not appear, with any distinctness, that the execution, under which the sheriff subsequently levied upon and sold the property seized under the attachments, was issued upon a judgment in favor of these defendants in the action in which the attachments were granted. It does appear, however, that the subsequent levy and sale was under an execution which these defendants had issued, and it may, perhaps, be assumed that it was issued upon a judgment in their favor and against the plaintiff.

The amount of the judgment is not stated ; nor does it appear, from the papers before us, what was the amount of the defendants’ claim. If, therefore, the sum obtained by the sheriff on the sale was more than sufficient to satisfy the defendants’ execution, the surplus would be applicable to the claims' of the other attaching creditors. In that event, their attachments would hold to the extent of such surplus, and their existence would be available to the defendants in this action, in mitigation, pro tanto, of damages.

Upon such a state of facts, it would have been erroneous to have excluded the evidence and levy of such attachments, even although it was not set up in the defendants’ answer. Going merely in mitigation of damages, it need not have been pleaded (Travis v. Barger, 24 Barb. 614).

But the defendants had not furnished sufficient evidence to make their offer available. If the sale by the sheriff was under an execution in their favor, and their judgment was sufficient to exhaust the whole proceeds of sale, then the subsequent attachments were no lien upon any of the property ; and no part of the proceeds went to the plaintiff’s benefit, in satisfying the claims of other creditors.

Upon the proof, therefore, before the court, the offer to prove the attachments was properly overruled, and the case is brought directly within Lyons v. Yates, 52 Barb. 237, and Peak v. Lemon, 1 Lans. 295.

Every intendment is in favor of sustaining the judgment ; and it was incumbent on the defendants to show clearly a state of facts, leaving nothing to inference or implication, which would have made the evidence they offered proper.

Having failed to show such facts, it was proper for the learned justice at the trial to assume that the whole proceeds of the sale were applied to the defendants’ execution, leaving nothing for the other creditors to attach.

Upon such assumption, the attachments could furnish no proof in mitigation of damages.

The judgment should he affirmed.

Note by Reporters. —The foregoing case was partially yet imperfectly reported in the 34th Superior Court Reports, page 315, owing to the fact of a mistake in the abstract of the case furnished to the reporters. This mistake is now corrected, and the opinions fully reported.  