Lovett v. Pike , 41 Me. 340 ( 1856 )

Appleton, J.

The present plaintiff, on Nov. 27, 1848, sued out a writ of attachment against Leonard Foster, and placed the same in the hands of Andrew Hall, a deputy of the defendant, who on the same day returned, that he had attached “all the goods, wares and merchandize, owned by him, (Foster,) in the store now occupied by him in Brighton, also attached the shovel handle blocks stored under the above- • said store together with those stored in said Taylor’s barn.” No schedule or appraisal of the goods then attached was made till a year afterwards. At the May term, 1849, of the District Court, the plaintiffs recovered judgment in their suit against Foster, and seasonably placed the execution issued thereon in the hands of said Hall, who advertised and sold the goods attached at public vendue, conforming to the law in advertising and making sale thereof, and indorsed his doings upon the back of the execution in his handwriting, but deceased without affixing his signature thereto.

The goods attached sold at less than their appraised value. The plaintiffs claim that the defendant should be held liable for their appraised value without any deduction.

It was held, in Ingersoll v. Sawyer, 2 Pick. 276, where a deputy sheriff had sold on execution an equity of redemption and given a deed to the purchaser and died before the return day, without having entered his doings thereon, that the sheriff might lawfully make a return of his deputy’s doings, and that the purchaser of the equity had a valid title, notwithstanding the return was made after the return day. It would seem, in accordance with the case to which reference has been had, that the defendant might have completed the return of his deputy, and that, if done, it would have been valid.

For some reason, the defendant declined acting in this matter, and the inquiry now arises, whether he may show by parol the proceeds and expenses of the sale made by his deceased deputy, and if shown, whether in case there was not want of good faith in his proceedings, the plaintiffs would not be limited by the amount thus proved.

The value, and proper disposition of the property attached, as well as the loss or injury suffered by any partial noncompliance with the law, are all matters in dispute, and as to which evidence may properly be received on either side. As the deputy failed to sign his return, the evidence cannot be regarded as contradicting it, for there was none completed.

It seems that the deputy purchased a portion of the goods sold at auction. Such a purchase is undoubtedly a conversion, for which trover will lie, though the amount paid therefor, if allowed on the execution, may be shown in reduction of damages. Perkins v. Thompson, 3 N. H. 144. But if the sale was for a fair price, and the proceeds are allowed the creditor, he has no just cause of complaint.

It appears that some articles were sold at private sale and before judgment was rendered. If this had not been done, they would have become valueless. For all such sales the defendant is ready to account. They were sold at fair prices, and no reason is perceived why the defendant should account for more than he has received. By making the sale, the plaintiffs receive the full value of what by lapse of time would otherwise have become a total loss; and instead of receiving an injury, have been benefited by the very sales of which they now complain.

From the whole evidence, it satisfactorily appears that the goods attached were mostly sold in accordance with the provisions of law, and at a fair price, and for the benefit of all concerned. In those instances, when they were not so sold, the defendant is ready to account for their value.

The defendant should be held liable for the sales of the goods as proved to have been made. From this sum should be deducted the expenses of keeping and selling the same, • and judgment should be rendered for this sum, and interest thereon from the date of the sale.

Defendant defaulted for $433,48, and interest.

Tenney, C. J., and Rice, Cutting, and May, J. J., concurred.

Appleton, J.

As the attachment in the action Howe & al. v. Foster was subject to that in Lovett & al. v. Foster, and as the goods attached did not sell for enough, after deducting the necessary expenses, to satisfy the first attachment, the plaintiff can only recover nominal damages.

As the defendant, at a preceding term, with a full knowledge of all the facts, voluntarily submitted to a default, no sufficient reason is perceived for disturbing the present posture of the case. Default to stand.—

Judgment for one cent damages.

Tenney, C. J., and Rice, Cutting, and May, J. J., concurred.