
    The W. L. Adamson Company et al. v. Izor.
    
      Section 5446, Revised Statutes, construed — Bond given to claimant of attached property, takes place of latter — Measure of damages to claimant — Interest of claimant with six per cent. ■ from delivery.
    
    An undertaking given to a claimant of attached property, under the provisions of Section 5446, Revised Statutes, takes the place of the property to the extent of the interest therein which the claimant may establish in his suit on the undertaking, and the value of said interest with interest thereon from the date of the delivery of the undertaking to the claimant, is the measure of his damages.
    (No. 10000
    Decided February 26, 1907.)
    Error to the Circuit Court of Montgomery County.
    The W. L. Adamson Company having an overdue claim against J. E. Izor, brought suit against him in the court of common pleas of Montgomery county to recover its amount with interest, and by filing the necessary affidavit and giving the statutory bond, procured a writ of attachment to be levied on a stock of groceries, provisions, meat, etc., and grocery fixtures, also two horses, -two sets of harness and two wagons, situate in the city of Dayton, as the property of the debtor, J. E. Izor.
    After the sheriff seized said property by virtue of the writ of attachment, the same was claimed by one Jacob H. Izor, and asserting his ownership thereof, he demanded of the sheriff that he cause proceedings to be had to try -and have determined the right.to said property in accordance with Sections 5444 and 5445, Revised Statutes. Such proceedings were had before a justice of the peace and a jury as provided for in said sections, and the trial resulted in a verdict for the claimant, Jacob H. Izor, as to all the property, in which the valúe of the attached property was fixed at $930. The justice rendered the judgment .authorized by the statute.
    Within three days thereafter the attaching creditor, The W. L. Adamson Company, tendered to the sheriff an undertaking in double the amoúnt of the value of the property as assessed by the jury, with sureties approved by the sheriff, and payable to the claimant, conditioned as required by Section 5446, Revised Statutes. After the approval of the undertaking the sheriff delivered the same to the claimant, Jacob H. Izor, and proceeded to sell the property at the request and on the demand of the attachment creditor, who is now the plaintiff in error, and having sold sufficient of said property to satisfy the demand of said creditor, the claimant was notified to take possession of the unsold portions, which he refused to do, but brought suit on said undertaking to recover his damages sustained by reason of the detention and sale of said property.. The plaintiffs in error, as principal and sureties on the undertaking, were made defendants, and filed their answer to the amended petition, in which the foregoing -proceedings are admitted, but' they further say “that shortly after said sale,- to-wit, about January 11, 1902, the plaintiff and all other parties claiming any interest in the property which had been attached were notified that the claim of said The W. L. Adamson Company had been satisfied, and that it claimed no further' interest in the unsold residue of the property which had been attached, and that both it and said sheriff surrendered all further right to the possession thereof.” They then deny “that said company thereafter, either through itself or said sheriff, kept, retained or held possession of said property, or any part thereof, or that said company in any way converted or derived any benefit from any portion of the property attached except the portion of the same sold under said writ, of attachment as stated.’.’ By an amendment to the answer, the defendants allege that the said claimant, Jacob H. Izor, paid no consideration for the property, or if any was paid it was inadequate, and that the transfer to him by J. E. Izor was made with intent to defraud creditors of their just demands, and was and is fraudulent and void. They next charged that J. E. and Jacob H. Izor conspired to obtain from the attaching creditor goods on credit, and then defraud it out of the price and consideration thereof.
    The new matter was denied by reply.
    The casé was tried to a jury, and the defendants, now plaintiffs in error, offered evidence to prove the value of the unsold portions of the attached property, and that the claimant, Jacob H. Izor, had been notified that he might resume possession thereof.
    The following are some of the questions pro pounded by the defendants:
    Question to deputy sheriff: “Did you sel’ any more than necessary to satisfy the judgment and pay the costs?” Quéstion: “You may state whether or not the portion of the stock which was sold to satisfy the judgment and pay costs was or was not a large or considerable portion of the stock.” Question: “You may state whether or not after selling enough of the stock to pay the judgment and costs there was not left all the fixtures which had been located in the store.” Question: “You may state whether or not at the conclusion of the sale, there was still enough fixtures and stock left undisposed of to enable a grocer to start grocery business with — go on with liis business.” Objections to these and other similar questions were sustained, and exceptions taken.
    The defendants requested the court to charge: “If you should find the plaintiff otherwise entitled to recover, his recovery, so far as relates to an actual conversion of the property levied on is concerned, must be limited to the reasonable value of the property actually sold under the order of attachment, with interest from the day of sale.” * * * Also to charge: “It is alleged in the amended answer, without denial, that immediately after the sale, to-wit, on January 11, 1902, the plaintiff was notified to take possession of the place of business and to resume possession of the unsold residue of the attached property. If you find from the evidence that he refused or failed to do this, and that such residue of property was thereby, for any reason injured, destroyed or otherwise lost to him, or that by reason of such refusal damages resulted to him in any way, he can not recover against the defendants in this action for the value of the property of which he refused to resume possession, or for any of the damages so occasioned.”
    These and other requests similar in substance and purpose were refused and defendants excepted.
    They excepted to the general charge.
    The jury found for the plaintiff — the claimant— and assessed his damages for the value of the entire property attached with interest. The motion for new trial was overruled and judgment rendered on the verdict, which was affirmed by the circuit-court. The case is here on error.
    
      Messrs. Young & Young, for plaintiffs in error.
    The stipulation in the bond readily shows that The W. L. Adamson Company, in making it, had no intention of paying any greater damages than' had actually been sustained. This is apparent from the wording of the bond. The clauses binding The W. L. Adamson Company read:
    “Now, therefore, if the said The W. L. Adamson. Company shall pay to said Jacob H. Izor all damages sustained by reason of the detention or sale of the property so attached, then these presents shall be void; otherwise to be and remain in full force and effe'ct.
    “The undersigned hereby agree to pay to said claimant all damages so sustained, and said company, pursuant to the provisions of Section 5446, demands that said sheriff shall proceed to sell the property so attached, as if no trial of the right thereto had taken place.”
    In this case all the property was not sold, but the court refused to allow testimony-to this effect. These two clauses in the bond combined are capable of only one interpretation; namely, that the Adámson Company would pay such, damages as were incurred by reason of the sale of the grocery stock, and ‘ only such damages as were actually shown and proved. In this case there was - no final detention of all the property, neither was there any sale of .all of it; therefore there should be no recovery for the detention and sale of all the property in question. Alexander et al. v. Jacoby et al., 23 Ohio St., 364.
    A defendant in attachment can not recover in an action on the attachment bond unless he shows not only that the attachment was wrongful, but that he has sustained sonie damage; the mere fact that the plaintiff in the attachment did not recover is not sufficient. And such damages must be the natural and proximate consequence of the act of suing out the attachment. Shinn on Attachment.
    Our contention is that the Adamson Company acquired no title to the property not sold. If the suit were against it alone for conversion, it might, perhaps, be claimed that the judgment in damages for tort operated to give the company a title, but this does not affect the question as to the measure of damages in a suit on the bond.
    Even though the claim were one for conversion generally, under the decisions in Ohio no title would have passed to the Adamson Company until the rendition of the judgment in the suit for trespass. Acheson v. Miller, 2 Ohio St., 203. See “conversion” as interpreted by Bouvier’s Law Dictionary.
    In this case there has been no unlawful taking of' property. What has been done is simply that which has been authorizd by statute, aiid it has been held that “a rightful interference with the chattel of another can not constitute a conversion.” Barrett v. City of Mobile, 129 Ala., 179.
    
      Mr. Dan H. Pfoutg, and Mr. Charles H. Kum-Icr, for defendant in error.
    • The bond being in the nature of a replevin bond, and being so considered, there was no-error in assuming that the bond took the place of the property had the court so held. Jennings v. Johnson et al., 17 Ohio, 154; Williams v. West, 2 Ohio St., 83; Smith v. McGregor, 10 Ohio St., 461.
    The plaintiffs in error in this case claim that they were liable only for damages amounting to the value of the property actually sold by them. See Section 3677, Vol. 7, Lawson on Rights, Remedies and Practice, where this doctrine is laid down. Higgins v. Whitney, 24 Wend., 379; Woolley v. Carter et al., 7 N. J. L., 85; Kelly v. McDonald, 39 Ark., 387.
    We therefore maintain that the plaintiffs in error were guilty of conversion of the property of the defendant in error the moment the bond was given. The word conversion is defined to be “any distinct act of domination wrongfully exercised over another’s property in denial of his right or inconsistent with it.” Cooley on Torts, • second edition, pages 523, 525. The conversion may arise from the wrongfully taking and illegal assumption of ownership and illegal use or misuse or a wrongful detention. Glaze v. McMillan, 7 Port., 279; St. John v. O’Donnell, 7 Port., 466.
    As before stated, defendant in error had a right to bring the suit against the Adamson Company for the conversion the moment the bond was given, for we claim at that time there was a conversion on the part of the Adamson Company, or he could sue upon the bond executed to him; and our further claim is that the measure of damages would be the same, to-wit, the value of the property at the time of the conversion, with interest.
    The right of action is complete when a conversion is shown and no tender of the property after conversion or by an agreement of the owner without consideration to receive it will defeat the action or mitigate the damages.
   Price, J.

The theory of the plaintiffs in error is made manifest in the questions propounded at the trial and in the instructions requested, which appear in the statement of the case. It is, that after the 'trial of the right of property seized on attachment in which the jury found for. the claimant, the attachment creditor could give the undertaking specified in Section 5446, Revised Statutes, and have enough of the personal property sold to satisfy his demand and costs of the case, and the value of the portion so sold, with interest, is the limit of his liability on the undertaking. This theory did .not prevail in the lower courts, for the rejection of the testimony offered on the trial and the refusal to charge as requested, as well as the general charge, recognized a different construction of the statute and the undertaking executed thereunder. The trial court charged the jury as follows: “This bond was given for the protection of the sheriff on carrying into effect the process which The W. L. Adamson Company caused to be issued in its suit against Jonah E. Izor, and when given, took the place of the property which in the proceedings before the magistrate was declared to be in the plaintiff.

“If you find for the plaintiff, therefore, he will not be limited in his recovery to the amount of the property sold by the sheriff, although notified that the claim of The W. L. Adamson Company was satisfied without the sale of all the property, and although the said The W. L. Adamson Company and the sheriff offered to surrender said residue. • * * *”

This rule of liability is the very opposite of the one contained in the special instructions requested by the plaintiffs in error. Which is the correct rule ? —seems to be the only important question raised in the record. A brief consideration of the statutes relating to the subject will furnish an answer to the question. After the stock of groceries, provisions, fixtures, horses, wagons, harness, etc., had been taken in attachment by said company, the defendant in error made claim that he owned all of said property, and demanded of the sheriff that he cause proceedings to be had to try the right of the claimant to the same. The course of procedure in such case is pointed out in Section 5444, Revised Statutes, and it was pursued by the sheriff, so that the creditor, who had due notice of the time and place of trial, and the claimant, met before the magistrate and jury where the right of property was contested. The claimant won as to all the attached property, for such was the verdict of the jury. Section 5445, Revised Statutes, authorizes the magistrate, in case of such verdict, to “render judgment upon such finding for the claimant, that he recover his costs against the plaintiff in execution, or other party for whose benefit the execution issued, and also that he have restitution of the goods and chattels, or any part thereof, according to the finding of the jury. * * * A judgment for the claimant, unless an undertaking be executed as provided in the next section, shall be a justification of the officer in returning ‘no goods’ to the writ of execution-by virtue of which the levy was made, as to such part of the goods and chattels as were found to belong to the claimant, and the same fees, ¿tc.”

The attaching creditor, plaintiff in error, yvas not content with the verdict and judgment rendered in favor of the claimant, did not intend that the attached property should be restored to him, and as the proceeding was not conclusive, he resorted to the next section (5446) for the purpose of bringing the property — not part — but all of the attached property to sale. So within three days next after the verdict and judgment, the creditor,- The W. L. Adamson Company, executed the undertaking provided for in that section. It was in double the value of the property as fixed by the jury in- the magistrate’s court and'conditioned that “if the said The W. L. Adamson Company shall pay to said Jacob H. Izor all damages sustained by reason of the detention or sale of the property so attached, then these presents shall be void; otherwise to be and remain in full force and effect.” This bond with approved sureties was taken, and as directed by the statute, it was delivered to the claimant who is defendant in error. It is worthy of note that the sheriff is not required to file this undertaking in his office or the office of the clerk, but it must be delivered to the claimant.

Then what follows ? The officer proceeds “to sell the property as if no trial of the right there to had taken place, and shall not be liable to the claimant therefore.” This means that the officer is directed to resume possession of the goods and chattels and sell them as property of the attachment debtor, J. E. Izor. The bond in-double the value of the property having been delivered to the claimant, Jacob H. Izor, the latter yielded full possession and control to the officer who was holding the process for plaintiff in error in the attachment proceeding. The creditor still insisted that the goods and chattels belonged to his debtor, notwithstanding the verdict and judgment in the magistrate's court where the right of property had been tried, and to carry this claim over such verdict and judgment, the undertaking under consideration was executed and delivered to the claimant. It is not conditioned for the restoration of any part of the property to the claimant, but that he, the creditor, will pay all damages sustained by reason of the detention or sale of the property. By reason of these proceedings there came to pass a complete conversion of the attached goods and chattels.

Oftentimes personal property attached is in whole or in part of a perishable nature, and such may have been true in the attachment proceeding' referred to herein, and it is the policy of the law that the jus disponendi should at all times reside somewhere and not be suspended for an indefinite period. After delivery of the undertaking in whom was the jus disponendi? Surely not in the claimant, Jacob H. Izor, for that is what he had just lost by reason of the undertaking. It would seem that the attaching creditor assumed that right inasmuch as he directed the officer to take full and absolute control of all the attached goods and chattels and sell them as the property of J. E. Izor; and the goods that were sold were sold as his goods, the purchaser taking title as of the goods of J. E. Izor. What right has the creditor, when he has caused the sale of enough of the goods of J. E. Izor to satisfy his cause of action and costs, to treat the unsold residue as the property of Jacob H. Izor, the claimant, and notify him to resume possession of the same and go on with the grocery business? It is exercising a high hand, when the attachment creditor can seize all the goods as belonging to his debtor, and when his claim is satisfied throw the unsold portions to the real owner as so much refuse; and yet that is the attitude of the plaintiff in error in defending against recovery in this case on the undertaking. The creditor exercised his legal privilege and right to ignore the finding and judgment in the case where the right of property was tried, gave the undertaking, and by course of conduct, said to the officer as well as to the claimant, the goods and chattels attached belong to the debtor, J. E. Izor, notwithstanding the result in the magistrate’s court, and you will proceed with the sale as if no such trial of right of property had taken place, for such is your statutory duty. The sale proceeded until enough was sold to pay the claim, and then the creditor says, perhaps the unsold residue of property may belong to the successful claimant, and so far as I am concerned he may take it back. This would be a most arbitrary partition of the property, and would, if legally recognized, give the cream of the goods to the auction block an,d the odds and ends to the claimant.

The exercise of such a right would bring about very unjust consequences, and is not permissible under a proper construction of the statute and the undertaking. The course pursued by the creditor compelled the claimant to rely on and resort'to the undertaking for his redress, and here again the creditor contests the claimant’s title to any part of the property, but asked the trial court to charge the jury that in case the claimant made out his title to the whole, he could recover only for the value of the goods actually sold with interest on that value, because he, the creditor, had offered to return the unsold residue to the claimant. Such doctrine is not the law of this case, and the trial court correctly so held. The condition of the bond is to pay to the claimant “all damages sustained by reason of the detention or sale of the property so attached," and the condition is not met by payment for such parts of the goqds and chattels as were sold by the' officer. The detention was of the entire stock seized and the true owner was not required to hunt up or down for the remnants unsold.

The undertaking took the place of the property, is the concrete statement of the law to be applied to the facts of the case, and the sureties on the instrument are held to secure the performance by the principal of the obligations which he has assumed.

It is hardly necessary to say that the provisions of the sections of the statute referred to, while a part of» the statute relating to executions, exemptions, etc., are construed to apply also to proceedings in attachment, the trial of the right of property, execution of undertaking, etc., as in cases of executions.

We find no error, and the judgment of the circuit court is affirmed.

Judgment affirmed.

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.  