Winkel v. Atlas Lumber Co.

Bobinson, J.

The plaintiff shows that in 1911 he joined with ■defendant in an attachment suit against one Hirschmann, each agreeing to pay an apportionate share of the cost. The attachment was levied. Then settlement was made, and each party received, full payment of his -claim, with costs. The claim of the plaintiff was $51,50, and that of defendant was $765.50. Some two years after the attachment suit had been settled, an action was commenced in the Kossuth county circuit ■court of Iowa to recover $5,000 as real and exemplary damages for the alleged conversion of certain personal property taken in the attachment ■suit and transferred by bill of sale to the plaintiff. The claim was that the bill of sale was merely a security, and that the plaintiff in this action had wrongfully sold and converted the property. Without in -any manner consulting the Atlas Lumber Company or giving them any notice of the Iowa action, the plaintiff voluntarily went to Iowa as a witness. Then a summons was served on him. The service was at once declared void on a showing that the plaintiff in this action merely went to Iowa as a witness in the case there pending. The Iowa action amounted to nothing and it was dismissed. However, the plaintiff .avers that in this Iowa action he paid out necessary attorneys’ fees and ■expenses, amounting to $821.18, and that the apportionate share of such expense justly due and owing from the defendant is the sum of $769.50 and interest.

It seems the trial court submitted all questions of law and fact •to the jury, and they found a verdict against the defendant for $635. The defendant appeals from the judgment on the verdict and from an ■order denying a motion for judgment notwithstanding the verdict.

There is no claim that the Atlas Company ever made a contract to share in the cost, except by its auditor, and his authority was based on a letter .to him as follows: “This letter will give you authority to sign the company’s name to any paper necessary to attach any goods this man has, or prepare any papers that are found necessary to protect, our interest and to collect our account.”

This was given at the time of the attachment proceeding, and clearly it related to the attachment suit, and not to such costs as the plaintiff might possibly incur in a wild-goose trip down to some port in Iowa.. In any event, to lay a foundation for a recovery against the Atlas Company for costs incurred in the Iowa suit, the plaintiff should first have consulted with the Atlas Company and given them fair notice of the pendency of a suit. If the plaintiff really did pay out such an enormous bill of costs for attorneys’ fees, he must charge it to his own folly. He is as the man who went down from Jerusalem to Jericho and fell among thieves. The judgment is reversed and it is ordered that judgment be entered in favor of the defendant notwithstanding the verdict.

Christianson, J. I concur in the result reached by Mr. Justice Robinson, Bruce, ■ Ch.. J. I dissent. Grace, J. I dissent.