
    WHITTLER v. SHARP, SHERIFF.
    No. 2478.
    Decided August 21, 1913
    (135 Pac. 112).
    1. SHERIFFS AND CONSTABLES-ACTIONS FOR CONVERSION-EVIDENCE. In an action against a sheriff for converting an automobile on which plaintiff had a chattel mortgage, evidence held sufficient to support a finding that the deputy sheriffs were notified that plaintiff had a mortgage thereon when they levied thereon under a writ of attachment. (Page 423.)
    2. Sheriffs and Constables — Actions for Conversion — Evidence. In an action against a sheriff for converting an automobile, upon which plaintiff had a chattel mortgage, by levying thereon under a writ of attachment, evidence that the automobile when levied upon was in the barn of plaintiff’s son-in-law, that shortly after the levy, with plaintiff’s knowledge, though without his consent and against his protest, it was replaced in such barn, would not support a finding that it was abandoned and not left in the possession of any one. (Pafe 423.)
    3. Sheriffs and Constables — Action for Conversion — Evidence. In an action against a sheriff for converting an automobile, upon which plaintiff had a chattel mortgage, by levying thereon under a writ of attachment, evidence held insufficient to support a finding that it was returned to the place from which it was taken without plaintiff’s knowledge but sufficient to support a finding that he did not demand or consent to its return. (Page 423.)
    
      4. Sr~mus'rs AND CONSTABLES-WRONGFUL ATTAcHMENT-LIABILITY. Although the statute provides that, before mortgaged property may be taken on attachment, the officer must pay or tender the mortgagee the amount of the mortgage debt or deposit tho amount thereof with the county recorder, the taking of the property without complying therewith does not render the officer liable to pay the debt but makes him liable in tort for the damages sustained thereby; the levy being unauthorized and the seizure a trespass. (Page 425.)
    5. Taovjm AND CONVERSION-DAMAGES-VALUE OF PROPERTY. Ordinarily in conversion, when the property is not returned, the value thereof at the time of the conversion is the measure of damages. (Page 426.)
    6. TROVER AND CoNv]IaSI0N-MITIGATI0N OF DAMAGRS-RzTURN OF PROPERTY. In an action for conversion, a return of the property to plaintiff and an acceptance of it by him may be shown in mitigation of damages, if the property when returned was in the same condition as when taken and plaIntiff has suffered no special damages. (Page 426.)
    7. SHERIFFS AND CONSTABLES-CONvERSION--MITIGATION or DAMAGES-RETURN OF PROPERTY. Where a levy on mortgaged personal property under a writ of attachment without paying or tendering the mortgage debt, as required by statute, was made and the property seized in good faith and not oppressively, the property was unused and stored at the time of the levy, was retained but five days, and then returned in the same condition as when taken and left in the place from which it was taken, where it remained subject to the mortgagee's control and dominion, the mortgagee, in the absence of any proof that he had sustained any loss, was entitled to recover only nominal damages, although the mortgagee refused to accept the return of the property, especially as he could not convey title to the property to defendant upon satisfaction of a judgment for its value and did not offer to transfer his lien. (Page 426.)
    APPEAL from District Court, Third District; ibm. T. D. Lewis, Judge.
    Action by J. F. Whittier, against Joseph C. Sharp, Sheriff of Salt Lake County.
    Judgment for plaintiff. Defendant appeals.
    REVERSED AND REMANDED.
    
      
      Bey, Hoppaugh, & Fabian for appellant.
    
      G. G. Qatrell for respondent.
   STEAUP, J.

In tbe complaint it is alleged tbe plaintiff beld a recorded chattel mortgage in tbe sum of $850 on an automobile of tbe value of $1000, tbe property of bis son, tbe mortgagor; tbat tbe defendant, tbe sheriff of Salt Lake County, on a writ of attachment in an action against tbe son, “seized, took, levied upon, and carried away said automobile and did not then or at any time pay or tender to tbe plaintiff, or deposit with tbe county recorder of Salt Lake County, tbe amount of tbe mortgage debt or any part thereof,” though past due and wholly unpaid; tbat a,t tbe time of tbe levy tbe plaintiff notified .the sheriff “tbat said automobile was subject to such chattel mortgage and demanded payment of said mortgage indebtedness upon such seizure, and thereafter in writing demanded from tbe defendant tbe payment of such mortgage indebtedness; but tbe defendant has refused and still refuses to make such payment, by reason of which tbe plaintiff has been damaged in tbe sum of $850,” for which amount, together with interest and costs, judgment was demanded.

In bis answer tbe defendant admitted tbe levy and seizure of tbe automobile on tbe writ of attachment, denied tbe plaintiff at tbat time notified him of tbe chattel mortgage, averred be then bad no knowledge of tbe mortgage and tbat shortly thereafter, upon receiving written notice from tbe plaintiff and learning of tbe existence of the mortgage, be released tbe levy and, with tbe knowledge and consent of tbe plaintiff, returned tbe automobile to tbe place from which it was taken and in tbe same condition as when it was levied on. Neither tbe mortgage nor tbe validity or regularity of tbe attachment proceedings was disputed or questioned.

Tbe case was tried to tbe court, who found tbat at tbe time of tbe levy tbe automobile was not in tbe possession of tbe plaintiff; tbat it was stored in a. barn belonging to one Servis, tbe son-in-law of tbe plaintiff; tbat tbe plaintiff, at tbe time of the levy, notified tbe sheriff “that said automobile was subject to such chattel mortgage and demanded payment of said mortgage indebtedness upon said seizure, and thereafter in writing demanded from the defendant the payment of such mortgage indebtedness, but^the defendant has refused and still refuses to make such payment; that five days after such seizure . . . the defendant released said levy and returned said property to the place where it was at the time said levy was made and tendered the same to the plaintiff, which release and return were made without the consent or assistance of the plaintiff, and that the plaintiff then and there refused to release said automobile from the defendant; that the said plaintiff did not at any time demand return of said property nor did he at any time release the same into his possession;” that the defendant, when the levy was made, had no knowledge of the mortgage “except constructive notice imparted by the record and the verbal notice given him by'the plaintiff, but shortly after making said levy defendant learned of the record of said chattel mortgage and thereupon, and without the knowledge or consent or assistance of the plaintiff, said automobile was returned to the place from which the same had been taken and there abandoned, not being left in the possession of any one.” Upon these findings the court held the plaintiff was entitled to judgment for the value of the automobile, found to be $250, together with interest and costs, and rendered and entered such a judgment, from which the defendant has prosecuted this appeal.

The assignments present questions as to the sufficiency of the evidence especially to support the finding that the automobile was returned “without the knowledge and consent of the plaintiff” and was “abandoned, not being left in the possession of any one,” and as to the measure of damages.

In April, 1909, the plaintiff’s son purchased a secondhand automobile for the sum of $1000. The plaintiff loaned him $850 for that purpose and took a mortgage on it. It was used as a rent car on the streets until in November of that year, when it was stored in Servis’ barn near the plaintiffs residence and to wbieb be bad free access. Plaintiff’s son thereafter went to California. He wrote bis father “to jack np the car and take the air out of the tires.” This was done. On February 4th two deputy sheriffs made a, demand on the plaintiff for the possession of the automobile on a writ of attachment in an action against the son. According to the testimony of the plaintiff and others, he then .told them he owned the car; that he had paid for it; and that he had a mortgage on it. .According to the testimony of the deputies, he did not then tell them anything about the mortgage but told them he had loaned his son some money. Before the automobile was taken from the bam, one of the deputies, at the request of plaintiff, talked to plaintiff’s attorney over the telephone. The attorney asked him if he did not know there was a mortgage on the automobile, and the deputy replied that he did not. After the automobile had been taken from the bam and the deputies were about to leave with it, Servis stated to them that he was the owner of the automobile and threatened to have them arrested. They took the automobile on the writ and placed it in a garage. The next day the plaintiff’s attorney, in writing, notified the sheriff that the plaintiff held a mortgage on the automobile for the sum of $850; that the deputies had levied on ifiand seized it without paying the mortgage indebtedness and demanded $850 of the sheriff, together with interest, the amount ^of the mortgage debt. Three or four days after that, the sheriff released the levy and returned the automobile' to the bam whence it was taken. Here there is again some conflict in the evidence. The deputy returning the automobile tes- - tilled: When he drove up to the barn “I went and found Mr. Whittier (the plaintiff). He did not live where the bam is, but he lives a little distance away. I got him and told him we brought the car back, and he says, ‘Well, I told that.other fellow you would have to bring it back;’ and he looked at the machiné and went in and opened the doors. Then, before we done any more, he said, H want to telephone my attorney;’ and I said ‘All right.’ I went with him across the alley to a bouse, where he spoke to his attorney over the phone. The attorney told me over the phone (I told him I was there to put the ear back), 'Well, if you put it back, you will do it at your oavu risk.’ At that time the doors had been opened, but the car had not been put in the bam.” He further testified that the plaintiff assisted him and others in putting the car in the barn, and, after it was placed in position as found, the deputy said to the plaintiff, “Now, is it in as good shape as when it was taken out?” and that he said “Yes, but pump those tires up;” and “We pumped the air in; we then went away and the plaintiff closed the doors from the inside.” According to the testimony of the plaintiff, when the deputy and his party brought the car back he said to the deputy, “What are you going to do now ?” and the deputy replied, “We have brought the car back;” and that the plaintiff then said: “You can keep it. You took it against my will; now you can keep it. I don’t want anything more to do with it.” Continuing, the plaintiff testified: “Then he said that he was told to bring it back, and I said, 'Who told you ?’ and he said, 'Your lawyer;’ and I said, 'Just wait a minute.’ I then called up my lawyer and1 asked him, 'Did you tell the sheriff to bring back the automobile?’ and he replied that he did not. . . . Then just as they were about to leave I ran out in the street and I said to them, 'I want you to understand distinctly once more before all these gentlemen that I don’t accept this car.’ ” He further testified that, “if I had not consulted my lawyer about it, I would not have had any objection to their putting the car back in the bam.” The chauffeur, who was with the deputy, a witness called for the plaintiff, testified that, when they were about to leave, the plaintiff stated: “Now, remember, I don’t ao-cept this car. You fellows leave it at your own risk.” There is no dispute that the car, when it was returned, was in the same condition as when taken away, and that it was left in the barn uninjured and undamaged. There it ever since remained. There is no claim of any injury or loss suffered by the plaintiff during its detention, or that his lien was in any particular impaired, or that he otherwise suffered any loss.

^ We think the finding is justified that the plaintiff, at the time of the levy, notified the deputies that he held a mortgage on the automobile. The finding that it was returned without the knowledge of the plaintiff and was “abandoned, not being left in the possession of any one,” is unsupported. The finding that the plaintiff did not demand the return of it and did not consent to its return is supported. The evidence shows it was with plaintiff’s knowledge, but against his will and protest, returned to him and was with his assistance placed in the barn and there left either in his possession or that of his son-in-law. At any rate, it wasieft where taken and where the plaintiff had the same dominion and control over it as when levied on and seized. So whatever possession or right of possession he had was fully restored to him. The serious question, therefore, is that of damages.

The judgment was rendered on the theory of a conversion, and the damages measured by the value of the automobile at the time of the conversion found to be $250, to which was added legal interest.

By statute it is provided that, before mortgaged personal property may be taken on attachment, “the officer must pay or tender the mortgagee the amount of the mortgage debt or deposit the amount thereof with the county recorder.” The taking of the automobile without paying or tendering to the plaintiff the amount of the mortgage debt, or depositing the amount thereof with the county recorder, of •course, was wrongful. In law it constituted a conversion. But the defendant, by reason of the wrongful levy and seizure, incurred no legal obligation or liability to personally pay the mortgage debt. While the statute requires payment or tender to the mortgagee of the debt before mortgaged personal property is attached, yet, if it is levied on and seized without payment or tender, the levy is unauthorized, the seizure a trespass, and the officer liable, not for a breach of legal obligation to pay the debt, but for tort and the damages sustained bj reason of it. (Irwin v. McDowell, 91 Cal. 119, 27 Pac. 601; Keith v. Haggart, 4 Dak. 438, 33 N. W. 465.)

And' though the plaintiff, as found by the court, was not in the possession of the automobile, and though it be conceded he had such an interest in the property and, as against the officer, such a right of possession as to entitle him to maintain an action for conversion, yet, under the facts and circumstances of the case, what was the measure of his damages l He was not the owner of the property and could not vindicate the rights of the mortgagor, who was the owner. His interest was special. That he had a right to protect and defend. Now ordinarily in conversion, when the property is not returned, the measure of damages is the value of the property at the time of the conversion. But that is not so when the property has been returned and received by the plaintiff. In such ease, the return to, and acceptance of the property by, the plaintiff, though not a bar to the action, nevertheless goes in mitigation of damages, for the plaintiff cannot have the full value of the property converted and at the same time have the property itself. The authorities very generally hold that in an action for conversion a return of the property to the plaintiff, and an acceptance of it by him, may be shown in mitigation of damages, if the property when returned was in the same condition as when taken, and if the plaintiff suffered no special damages. But it is urged, and as found by the court, the plaintiff “did not consent” to a return of the property; and for that reason it is argued the return, or offer to return, does not go and cannot be considered in mitigation of damages. There are authorities to that effect. (Carpenter v. Dresser, 72 Me. 377, 39 Am. Rep. 337; Munier v. Zachary, 138 Iowa, 219, 114 N. W. 525, 18 L. R. A. (N. S.) 572, 16 Ann. Cas. 526; Railroad Co. v. O'Donnell, 49 Ohio St. 489, 32 N. E. 476; Kieffer v. Smith, 16 S. D. 433, 93 N. W. 645.) They proceed on the theory that, when a cause of action has once accrued to the owner of chattels on account of their conversion by another, the latter can neither destroy it nor restore the property in mitigation of damages without the assent of the former. There are other cases to the same effect, but in some ■of them the offer to return was not made until after suit, or where there was a deterioration of the property, or special' damages claimed, or where the conversion was willful, or malicious, or oppressive. On the other hand, there is good authority to sustain the proposition that in an action for conversion, -when not willful, malicious, or oppressive, the return of the property uninjured and undamaged, before suit, and placed in statu quo, though against the will and without the consent of the plaintiff but with his knowledge or notice to him, may be shown and considered, not in bar of the action, but in mitigation of damages; and, where special damages are neither claimed nor shown, the plaintiff in such case can only recover nominal damages.

In 2 Cobbey on Chattel Mortgages, section 732, the author ■says:

‘-‘If an officer, under process, seizes personal property mortgaged, without paying or tendering the amount due, the detriment proximately caused hy the seizure is not the value of the property hut the amount of the mortgage debt; and this detriment the officer, in seizing the property, assumes to make good. If an officer, as soon as he finds that the property levied on is claimed hy a third party, whose title he does not wish to dispute, returns the property and leaves it on the premises where found and thereafter asserts no claim to its possession, the damages recovered for the taking should be merely nominal, unless it is shown that plaintiff, a mortgagee, has suffered special damages.”

In 4 Suth, on Damages (3d Ed.) section 1140, that author says:

“If there was a willful taking of the property, or a willful refusal to surrender it on demand, or it has suffered an injury or •deterioration in value, the defendant cannot compel the plaintiff to accept it in mitigation of damages. This rule rests on the doctrine that a wrongdoer cannot take from the person wronged his right to pursue any of the legal remedies open to him. But if the property came lawfully into the defendant’s possession, and his refusal to surrender was qualified, or the conversion technical only, or without intentional wrong, and it remains strictly in the same condition-.as before the conversion, the defendant may compel the plaintiff to accept it in mitigation.”

See,' also, 1139 and 1141.

Tbe rule as stated in 88 Cyc. 2060, is:

“After an act of conversion a return of the property by the wrongdoer, or an offer to return it, although provable in mitigation of damages, will not bar the cause of action in trover."

In tbe case of Warder v. Baldwin, 51 Wis. 450, 8 N. W. 257, it was beld:

“If an officer, as soon as he finds that he has by mistake levied upon the wrong property, tenders it back to the persons'from whose possession he took it, leaves it on their premises, and thereafter asserts no claim to its possession, the damages recovered for the taking should be merely nominal, unless it is shown that the plaintiffs have suffered, by reason of the seizure, special damages apart from the mere value of the property. In such a case, if no tender be made before the commencement of the action for the taking, etc., yet if the officer then o'ffers to return the property and pay th'e costs, and it appears that the seizure was made in good faith, and that the property, at the time of such offer, was in as good condition as when taken, the damages should still be merely nominal, except as stated in the foregoing proposition.”

Tbe same conclusion was reached by tbat court in Churchill v. Welsh, 47 Wis. 39, 1 N. W. 398, and tbe same doctrine affirmed in Farr v. State Bank of Phillips, 87 Wis. 223, 58 N. W. 377, 41 Am. St. Rep. 40.

In tbe case of Ward v. Moffett, 38 Mo. App. 395, it was said:

“If the conversion was technical only, or without willful wrong on his part, and the property remained entirely in statu quo, the defendant may compel the plaintiff to accept it in mitigation of damages (citing cases). Where such a state of facts exists, it is. plain that evidence that the defendant has tendered the property to the plaintiff is admissible in mitigation of damages; and no reason is perceived why, for the purpose of showing good faith and mitigating the damages, the defendant should not, in such a case, be permitted to show in evidence his continued readiness to restore the property to the plaintiff.”

Tbe same rule is announced by tbat court in Gilbert & Miller v. Peck, 43 Mo. App. 577, and in Burge ex rel. v. Hunter, 93 Mo. App. 639, 67 S. W. 697.

In tbe ease of Yale v. Saunders, 16 Vt. 243, it also was beld' :

“If property, of the conversion of which .the defendant in an action of trover has been technically guilty, he shown to have subsequently gone into- the possession rand under the control of the plaintiff, who sues in trover, and to his use, this will go in mitigation of damages, though no agreement be shown, on the part of the plaintiff, that he would receive it, but not in bar of the action.”

.The same principle is announced by that court in Rutland & W. R. Co. v. Bank of Middlebury, 32 Vt. 639.

So in Bigelow Co. v. Heintze, 53 N. J. Law, 69, 21 Atl. 109, it was held:

“The return of the property after conversion is no bar to the action but is admissible in mitigation of damages. In such a case the plaintiff will not recover the value of the goods but the damages he has sustained by the wrongful act, which was. the feonversion. Where the taking was willful, or the property after the conversion had suffered injury or deteriorated in value, the defendant cannot compel the plaintiff to accept the property in mitigation of damages. But if the property came lawfully into the defendant’s possession, or. the conversion was technical only, and the property remains in the same condition as before the conversion, the defendant may compel the plaintiff to accept it in mitigation of damages.”

And in the case of Sutton v. Railway Co., 99 Minn. 316, 109 N. W. 815, the court said:

“In cases of merely technical conversion, where the property was returned in the same condition as before the unauthorized act, not only when the owner voluntarily received back the goods but also when he took them back against his will, the plaintiff will be entitled to only nominal damages and costs. To award more would be to exceed compensation under circumstances not justifying any other measure of damages; to award less would be to justify, a wrong.”

To the same effect are also the following: Coburn v. Watson, 48 Neb. 257, 67 N. W. 171; McGraw v. Sampliner, 107 Mich. 141, 64 N. W. 1060; Barrelett v. Bellgard, 71 Ill. 280; Stephenson v. Wright, 111 Ala. 579, 20 South. 622; Western L. & C. Co. v. Hall (C. C.) 33 Fed 236; Whitaker v. Houghton, 86 Pa. 48. This is also tbe rule in England. (Fisher v. Prince, 3 Burr. 1363; Hiort v. London & N. W. Ry. Co., 4 Exch. Div. 188.)

In tbe last case Lord Justice Bramwell said:

“A return of the goods undoubtedly might he shown to reduce the damages in the case of a conversion, not only where the owner voluntarily received hack the goods, hut where he took them hack against his will.”

Lord Justice Tbesiger remarked:

■"','1 “No doubt the action of trover has been surrounded by technicalities, which may have in some instances worked injustice. I think, however, of late .the tendency of the courts has been to treat this action with more common sense than it had previously been treated. Just as in other actions of tort it is held that a person to whom a wrong has been done can only recover his damages which flow from the wrong, so in an action of trover it is the tendency of the courts to apply the same rule. ... A plaintiff claiming goods is assumed, if he recover the full value, to be in a position to convey or transfer to the defendant the dominion over and property in the goods, so far as regards any act of his own. If that be so, how stands the matter? There was an act of conversion which gave the plaintiffs a right of action, and subsequent to that act of conversion there was a valid transfer of the property in the goods from the plaintiffs to some other person, who was entitled to hold the goods and bound to pay their price to the plaintiffs; then the plaintiffs clearly had no dominion over those goods, no property in them which they were able to transfer to the defendants upon the judgment being satisfied. ... It appears to me, therefore, to follow from the ordinary rules which are applicable to actions of trover, that the plaintiffs are entitled to recover damages only for the deprivation of their control over the goods from the time of the unauthorized delivery; but, inasmuch as it is admitted that during that period the plaintiffs sustained no damage, they can only recover nominal damages.”

Mb. Justice Seabuxy, in respect of this, in tbe case of Johnson v. Marks, 66 Misc. Rep. 153, 121 N. Y. Supp. 294 said:

“Rules for estimating damages are not intended as dogmas from which no departure can ever be made. Like rules in reference to nearly all other matters, they are subject to exception and are to be used so as to give effect to the purpose they were intended to serve rather than to be applied as stereotyped formulae, without regard to whether they result in. justice or injustice. The aim of the law in awarding damages in actions of tort ‘is to give the injured party a full indemnity, and no more, unless the injury has been willful or malicious.’ ”

We believe tbis to be tbe weight of modern authority and a doctrine well founded in law and upon reason.

On the undisputed evidence thé conversion here was but technical. It constiutes what Lord Justice Bramwell, in Hiort v. London & N. W. Ry. Co., supra, denominated a conversion in law as distinguished from a conversion in fact. It was hot willful or malicious. The levy was made and the property seized in good faith. It was not done oppressively. The property at the time of the levy, was unused and was stored and had been stored for several monthsyprior thereto. It was retained by the sheriff but five days, when he released the attachment and' returned the property in the same condition as when taken. It was returned and tendered to the plaintiff and left in the bam where taken, and there it ever since remained subject to his control and dominion. True, he refused to accept it. He evidently, under advice of counsel, preferred, if he could, to make an" involuntary sale of it to the sheriff or compel him to pay the whole of the mortgage debt. He undoubtedly is entitled to recover all the damages, both general and special, sustained by him in consequence of the wrongful levy and of the conversion. He ought to be made whole for the loss suffered by him in consequence of that wrong. What was that loss ? In what way was he injured or damaged ? He neither alleged nor proved anything in that respect. His complaint does not proceed on that theory. It proceeds on the theory that the sheriff, by reason of the wrongful levy, became liable to him for the full amount of the mortgage debt; and the court proceeded on the theory that the sheriff was liable to the extent of the full value of the property, if that, as it was found to be, was less than the mortgage debt, and this notwithstanding plaintiff cannot, if the judgment be satisfied, convey title to the defendant, and under the form of the judgment it is doubtful if he even could be compelled to surrender and trausfer his lien to the defendant, or any part thereof. He at least has made no such offer. His whole course of conduct indicates an assertion of his lien notwithstanding the judgment. And, though the judgment be paid, 'may he not by foreclosure proceed against the mortgagor and subject the property in satisfaction of the debt secured1 by the mortgage, if not for the whole amount, at least for the difference between the debt and the amount received by him on the judgment ? Then how about the mortgagor, a stranger to these proceedings? If the judgment be paid, what right, as against him has the sheriff to the property, or, even as between the mortgagor and the mortgagee, what right has. the former to offset the judgment against his obligation to the latter ? And so, if this judgment be paid, in the language of Lord Justice Thesiger, “how stands the matter?” But, aside from those considerations, it is manifest the plaintiff sustained no such loss as was found. The property was not deteriorated and was restored in statu quo. His lien was not impaired nor his rights thereunder abridged or hindered. Notwithstanding the conversion, five days thereafter, and at the commencement of this action, he had everything he had when the levy was made. To permit this judgment to stand is to award the plaintiff something for nothing. On the record, we think all that he was entitled to recover was nominal damages and costs.

The judgment of the court below is therefore reversed, and the cause remanded for a new trial. Costs to appellant.

McCARTY, C. J., and FRICK, J., concur.  