
    Lowenstein v. Monroe.
    1. Attachment: wrongful suing out: measure of damages. In a counter-claim for damages for the wrongful suing out of a writ of attachment levied on a stock of merchandise, the deterioration in value of the stock during the time it was held by the sheriff under attachment, and rent paid by the defendant for the building during the same time, are legitimate elements of damages; but loss of profits, or of business credit, by reason of the attachment belong to the class of remote and specular tive damages which the jury cannot consider.
    
      Appeal from Polh Ci/reuit Court.
    
    Thursday, December 9.
    Plaintiff brought an action against the defendant on an account for goods and merchandise sold and delivered. The petition prayed the issuance of a writ of attachment upon the ground that defendant had disposed of his property in part, and was about to make further disposition thereof, with intent to defraud his creditors. The writ was issued, and levied upon a stock of clothing owned by defendant, and in his store, and said store was closed by the sheriff.
    The answer, in addition to a general denial of indebtedness, set up a claim against the plaintiff for $3,000, based upon the alleged wrongful, willful, and malicious, suing out of the writ of attachment. The plaintiff moved for a more specific statement of the damages sustained by the defendant. The motion was sustained, and thereupon the defendant amended by setting out the damages in a more definite manner. The plaintiff moved to strike out a number of the items of damages, upon the ground that the same were not recoverable, being remote, uncertain, and speculative. The motion was sustained in part. Erom the ruling on the motion defendant appeals.
    
      Maxwell dh App and William Phillips, for appellant.
    
      Drown dk Dudley, for appellee.
   Rothrock, J.

— The several allegations of the answer and counter-claim wbicb. were struck out on motion are as follows: “1. The said attachment was levied on a stock of bis (defendants) goods wbicb was then of tbe , \ , .... „ . value of about $6,000, and by reason or sncii levy and invoice, and tbe retail trade of tbe same being thereby cut off, tbe value of said stock of goods was reduced to about tbe sum of $3,000.
“i3. That by reason of said levy tbe defendant was prevented from selling said goods at tbe season they were salable, and when there was a demand for them, by reason of wbicb be was damaged in tbe sum of $100.
“ 1. That tbe defendant’s business bouse was closed up and in tbe bands of tbe officer under said attachment for two months, whereby tbe defendant was damaged in tbe loss of sales of said goods in the sum of $500.
“ 6. That by reason of said attachment tbe defendant lost a large part of bis custom by reason of persons who bad for a long time been bis regular customers being induced to go elsewhere to trade, on account of bis store being closed up, whereby be was damaged in tbe sum of $1,500.
“ 7. That by reason of said attachment tbe defendant lost his credit at and with tbe wholesale bouses where be had for years purchased bis goods on time, and was thereby compelled to make cash purchases only, and was thereby unable to keep up bis stock so as to fill tbe demands of tbe market, whereby he was damaged in tbe sum of $2,000.
“8. That by reason of said attachment tbe defendant’s business bouse was closed up for two months, during wbicb time be was compelled 6 to pay rents on tbe same wbicb amounted to tbe sum of $120, whereby be was damaged in tbe sum of $120.
“ 9. That during all said time tbe defendant’s business was suspended, and bis trade cut off by said attachment, wbicb was a damage to him of . $1,000.”

All of tbe first of tbe above divisions of tbe answer which follows tbe words “ levy and invoice,” was stricken out. Tbe remainder was allowed to stand. We think this was erroneous. It is in substance an allegation that the stock was diminished in value by reason of the levy and invoice, and the stopping of the business of retailing the same, in the sum of $3,000. In other words it is no more than an averment that by reason of the levy, and closing the store, the goods diminished in value $3,000. In another part of the answer it is averred that the store was closed for two months. It was a perfectly legitimate claim for damages that, by reason of the withholding of the clothing from sale, the stock diminished in value by reason of its becoming unsalable. We do not understand this' division to be a claim for damages for loss of profits in the defendant’s retail trade, because the averment is that the value of the stock was reduced by the levy and closing up or stopping the business in which defendant was engaged.

The striking out of the eighth division was also erroneous. If the goods were kept by the sheriff for two months in the building and the defendant paid the rent' thei’efor, for that time, this was as clearly a proper claim for damages as the deterioration in value of the goods. It was the direct result of seizing and holding of the property. The defendant, if he lias a good cause of counter-claim by reason of the suing out of the attachment, is entitled to recover such damages as will recompense him for the injury, besides exemplary damages if the case is such as warrants an award of that character. The stoppage of his business, by reason of which he was compelled to pay rent for ,a building from which he was ejected by the sheriff, is certainly legitimate. If he had been giving his personal labor and attention to the business, and during tbe time was unable to obtain other employment, this also, we think, would be a legitimate claim for damages..

II. All of the other divisions of the answer, as will be seen by a casual reading of them, are claims for loss of profits in the retail of the goods, loss of business and custom, and loss of credit. These averments were, we think, properly stricken out, as not being such elements of damage as are proper subjects of allegation or proof in actions of this character. In Campbell v. Chamberlain, 10 Iowa, 337, which was an action for wrongfully, willfully and maliciously suing out an attachment, it is said: “In such actions the plaintiff is entitled to recover as damages all losses and expenses incurred by him in making defense to the attachment proceedings and such losses as he may have sustained by being deprived of the use of the property attached, and any injury thereto by its loss or depreciation in value; and for such losses he should be liberally rewarded. If the attachment was sued out willfully wrong, his damage should be for such losses and trouble, not only compensatory but exemplary. But injuries to credit or character, or business, are too remote and speculative to be considered in an action of this kind.” This seems to be conclusive of the question here presented. It is said, however, that the rules laid down in that case are not authoritative, because they are in no wise involved in the case itself and arc but the mere views of the judge who wrote the opinion. Wo think, however, that the record in that case properly demanded the establishment of the rules therein announced, and that those rules have been followed in the trial courts of this State. They meet our approval and we are not disposed to abrogate them.

Counsel for appellant have cited us to a number of cases where it has been held that injuries to business, loss of credit and the like are proper subjects of damages. An examination of these authorities show.s that such is the rule in Alabama, Illinois, and in Kentuckey. In most of the other States the rule is in eomformity with Campbell v. Chamberlain, supra. Eor the error in striking out part of the first, and all of the eighth, divisions of the answer the cause must be

Reversed.  