CHAMBERS 11. UPTON.
other could recover his share. On the trial these facts were developed. The plaintiff's testimony was, not that he had paid his five dollars, but that he had agreed to; and up to the time of the drawing, and the receipt of the money by defendant, plaintiff had never paid a cent. It is true, according to his theory of the case,-a theory found by the jury to have been thetruth,-he had promised to pay. Now, 1 am frank to say that, upon these facts, lam very doubtful whether the law is with the plaintiff. Dealing in lottery tickets is prohibited by the laws and constitution of the state; Could an executory contract be enforced? Put the question in this light: Suppose no money had been drawn, could defendant have maintained an action to recover the five dollars which plaintiff had promised to pay? If that promise was void as in contravention of the laws, can it be that his promise, thus void, made him a joint owner? 1 very much doubt it, and 1 have been embarrassed as to what course 1 ought to pursue.' 1 think that if on the argument of the demurrer I had understood the facts as 1 do now, 1 should have filled against the plaintiff; but a long trial has been had, a question of fact has been settled against the defendant, and it may be that the supreme court will hold that this promise to pay was equivalent to payment; if so, the judgment ought to be as it is, and with some hesitation I have concluded to let the judgment stand, and overrule the defendant's application for a new trial; for, the facts all being Upon the record, having been duly preserved by bill of exceptions, the defendant can obtain a final opinion from the supreme court. If in his favor, it will end the case, llnd so it will if it be against him. 1 felt that this explanation was due to myself. The order will be that the application for a new trial is overruled.
CHAMBERS 11. UPTON
March 14, 1888.)
'w: D. Michigan,
MALICIOUS PROSECUTION-LmELING VESSEL-DAMAGES.
The D.and the S., engaged in freight and passenger traffic between the Lake Michigan ports of Manistee and Frankfort, were rivals in business. Certain stockholders in the S., learning that a chattel mortgage on the D. was overdue, entered into a combination with one Z. to get the D. out of the way by buying in the mortgage and foreclosing it, said stockholders to pay, each. hIS proportion of the purchase money. This was done. and the vessel seized the next night at her dock in Frankfort, by the sheriff and the nominal assignee of the mortgage. and sent with Z. to Milwaukee. to report to M., a proctor there to whom said stockholders claimed to have shown a copy of the mortgage, and who advilled them that they might do what they afterwards did. The mortgage, which was made and filed in Michigan, was in the usua! form, and contained no provisions as to foreclosure, except that notice thereof was to be given for at least BO days by publication in a Ludington, Mich., paper, a provision which was not complied with. The day after the D.'sarrival in Milwaukee,Z., by M., libeled her in behalf of his father for a -half interest. The D. was thereby detained BO days, at the end of which time the libel was
dl!lmJ.9Iled..... ln the mean .time her owner. had paid the mortlJ,'age, with Ab'outriipe months before the seizure, Chambers, tbe owner, bad libeled the , D.for· the purpose ofestabllihing his title 8S sole owner in the district court' 'iin,MiChig;811, ,and tbat libel eubsequently was sustained. and decree was en. a.s prayed.. It was admitted by defendants that the object of the 'J:emoval to Milwaukee was to foreclose there, but the stockholders and asslgne60f the mortgage, who. with Z., were made' defendants, denied any kn(lwledgeof Z,'s pUl.'poseto libel the vessel there. Held. (1) that the removal of the.D. ;was tortious, and that ,her owner was entitled to recover against. all the defendants the value of the use of the vessel during the time she was detained, for his own time and reasonable personal expenses in recovering her, andthee;vense of putting her in the sam,f,} state of repair as when she was taken, butnot for his costs in prosecuting the libel filed in Michigan; (2) that none of tliedefehdants except Z. were liable 'for the reasonable costs and ex, .' penses of. counsel in ,the Milwaukee suit, unless ,they authorized or ratified, tllat proce.eding; and (S) that exemplarr daUiages could not be recovered, unless the seizure was wanton and maliCIOUS. 2. SAME-ADviCE OF Advice of counsel is DO defense to an action for a tort comUlltted on prop- ' erty. unless tb.e advice wa$ taken and followed in good faith; and not then e,xcept ,as to exemplary damages.! .
8. DAMAG$s...,.4PTION AGAIl'fST.SEVE.RAL DEFENDANTS-JOINT JUDGMENTS.
Where there are several'defendants, and 'the items of damages are distinct;,. joint judgmen't cannot be entered. unless each defendant is liable to the full , extent of ,tlle .verdict,
At Law., ,I The plaintiff:was the owner of a steam-vessel known as the" Joho DO' DeWarj"Bndi,the boat was engaged in passenger and freight traffic between the Lake Michigan ports of Manistee and Frankfort. On the.13th day of September, 1886, a suit was begun in the United States district court fol' district of Mich:igan, E:?outhern division, by ChaJIibers against defendant Zimmerman; Chambers claiming title as sole: owner to the vessel, and Zimmerman claiming in behalf of John W. Zimmerman, his father, one-half interest. Final decree in favor of' Chambers was made in that case January 4, 1888. All of the defimdants except Zimmerman were stockholders in a steam-vessel known as the "George D. Sanford/' engaged in the same b1;lsiness, and on the same route; and the boats were rivals in business. In July, 1887, a chattel mortgage on the Dewar for about $3,700, (the same indebtedness beingals6 secured by a real-estate mortgage;) and she was worth from $7,000 to $9,000. About $375 was past due on the chattel mgrtgage, which was held by Charles G.Wing, as executor of a will." De! fendant Zimmerman and the other defendants entered into a combinationto get the Dewar oufofthe way by means of this. chattel mortgage. They met and each defendant except Zimmerman paid in a. , proportion of the money necessary to purchase the chattel· mortgage,and on the 28tq day of June, 1887, they procured Wing to assign the chatlAs to how far the Clefendant, in an action for malicious prosecution, may rely' upon the advice 6f 'oo:nnseIJ and as to the necessity of stating to CQtmsel all the facts in the oase UP<1I;lwhich adVlce issought1. see Railroad Co. v. Hunt, (Vt.) 7 At!. Rep. 271, and Dote; Walker''': Camp. (Iowa,) 2'lN. W. :J:t,ep; BOO, and notal Moore v. RlUlroacl'. Co., (Minn.) 88 N:W. Rep. 884; Fire Ass'n v; '(Ga.) 81::1. E.Rep. 420..3 Mesher v. Iddings, (Iowa,) 84,N. W. ReP. 828; Donnellyv·. I!aggett, (Mass.) 14 N. lll. Rep. 161; Glasgow v. Owen, (Tex.) 6 B. W. Rep. 527; Manningv. Finn, (Neb.) 87 N. W. R,ep; 81'-
,CHAMBERS ,,. UPTON.
tel mortgnge to defendant Upton, paying him the face thereof:, On the next night,June 29, 1887, the vessel was at her dock' in Frankfort, and Upton, with the sheriff imd others, seized her, forcible disposessing the captain and crew employed by Chambers,.claiming to do so by virtue of the chattel mortgage, and sent defendant Zimmerman with her to Milwauk!')e, to report for orders to G. C. Markham, their proctor. Markham was also Zimmerman's proctor in the litigation about his claim to onehalf of the vessel. Defendants claimed to have exhibited to Markham, as their counsel, a copy of this chattel mortgage before they bought it, and 'that he advised them they could with it seize and take the vessel to Milwaukee, and there foreclose the mortgage; and they claimed this course was taken pursuant to such advice. The vessel arrived at Milwaukee June 30th, and the next day the defendant Zimmerman, by Markham, as proetor, filed a libel in the United States district court at Milwaukee in favor of his father, John W.Zimmerman, making claim for John W. to one-half interest in the vessel, in the same manner as in the suitin the United States praying that the vessel be sold and the proceeds court. in divided. Process issued, and the vessel was seized on this claim; and the .vessel was thus detained about 30 days at Milwaukee, when the libel was dismissed by the court. In the mean time Chambers paid the chattel mortgage and the costs, and immediately put the vessel back on the route. Chambers claimed to have tendered the full amount of the chattel mortgage, the second day after the seizure, and that Upton replied by referring him to Markham, his counsel. The defendants admitted that they intended to foreclose the mortgage, and get title to the boat; but all except Zimmerman disclaimed any knowledge as to the purpose to file the libel ill Milwaukee. Plaintiff claimed that the libel was a part of the whole scheme, and was contemplated by all the defimdants before the seizure. No proceedings were taken to foreclose the mortgage further than already stated. The chattel mortgage was in the usual ,form; and as to power of foreclosure nothing was said. except that it was written in it that in case of foreclosure notice. of at least 30 days should be given by publication in a newspaper published at Ludington, Mich. The mortgage was made and filed in Michigan. Plaintiff claimed damages for loss of good-will, and injury to trade; for loss of use of vessel for 30 days; for expense of keeping crew employed 30 days waiting the recovery of the boat; for damage to the vessel by want of care and exposure while away; for expenses in procuring the restoration of the vessel; for attorneys' fees paid in the matter; for loss of time; and for exemplary damages. Godwin, Adwit « Dunham, for plaintifl. Fktdun'« Wanty, for defendants.
SEVERENS, J., (charging jury.) The verdict in this case must be·for .the plaintiff. The question for you is, what amount of damages should the plaintiff recover. He is entitled to recover-Fir8t. For the value of the use of tIle vessel during the time she wae detained from him. Second.For his own time nnd personal expenses in recovering the posses-
sion of the vessel. Third. The expense of putting the vessel in thesame state ofrepair as when she was taken. Fourth. The costs and expenses of the employment of counsel in the suit at Milwaukee in maintaining his right to the vessel. This would include the services of counsel in Michigan, so far as such services were involved in the Milwaukee case; but it would not include the costs or expenses of counsel in the suit then pending in the admiralty court of this district. The costs and expenses; mentioned in all the foregoing points must have been reasonable. But'the right of the ,plaintiff to recover for the items stated in this last head is,qualified by the condition that that suit was authorized or ratified by the defendants; so that the proposition with the qualification is this: the plaintiff is entitled to recover for his counsel fees and expenses of the suit in Milwaukee, incurred by him necessarily in his defEmse there; provided you find that the defendants, all of them, either authorized the proceeding taken in that suit, expressly, or by such general delegation of authority to Markham as would justify him in instituting it; or, if they did not do this, that, !1ftf'lr such proceeding was taken, they approved it; for such subsequent ratification is in law equivalent to a previous authorization to do what was done. ' The defendants must each be shown to be liable to the extent of the verdict in order that a joint judgment should be rendered against them. The items of damages already mentioned are those recoverable on general grounds. And these are the only damages that should be included, unless you also find that the seizure was wanton and malicious. But such an element does not exist where the defendant does what he does in a bona fide belief that he has a legal right to do what he does. The defendants had a right to buy this mortgage, and to take rightful steps to foreclose-it. It would not, in such case, matter that they expected to buy in the boat, or that some other person would, and so take the boat out of competition with the other boat. They had legal right to do this. But they had no right to seize the vessel for the purpose of taking her to Mil waukee, and there foreclosing the mortgage. This was unlawful, and they are liable for the consequences already stated. If they took the boat to Milwaukee believing they might lawfully do so, they are not liable beyond such consequences. But if you find that they did not found their action upon such belief, but, with indifference to the legal right, they acted with a wanton and malicious purpose to get the boat out of the way, by any available means, whether right or wrong, then you may also add to the actual damages such sum as you think fit to impose by way of example, upon your own impression of the circumstancel:! of aggravation. Upon this question of the good faith of the defendant9,it is pe'rtinent to know whether they acted upon the advice of counsel. When a man lays his business before a reputable attorney, gives him the facts, and then proceeds in good faith in accordance with the advice he gets, malice cannot be charged against him; and while he may be liable to actual damages, if the advice was bad, he is not liable to exemplary damages. The question on this head turns on .this point: Did the defendanis commit
OLSON tI. FLAVEL.
the acts complained of in the. actual belief that they could lawfully do so? or did they act in wanton disregard of the lawful rights of the plaintiff?
There was a verdict for plaintiff for
OLSON V. FLAVEL.
(Dilr:rict Court, D. Oregon. March 81, 1888.)
SHIPPING-LIABILITY OF OWNER OR VESSEL FOR TORT-PERSONAL INJURIESCONTRmUTORY NEGLIGENCE.
Contributory negligence is not a bar to a suit in admiralty for damages on account of a personal injury; and, where the fault which caused the same is concurrent or mutual, the court will apportion the damages according to thl:\equity and justice of the case. Syllabu8 by the Court.)
In Admiralty. Libel for damages. John H. Woodward, for libelant. a. E. S. Wood, for defendant.
DEADY, J. This suit is brought to recover damages for a personal injury suffered by the libelant while employed as mate on the steam-tug Columbia. . It appears from the pleadings and evidence that on January 8, 1887, the defendant was part owner of the tug Columbia, then engaged in towing vessels in and out of the Columbia river, when and for some time before the libelant was employed thereon as illate; that on said date, the Columbia came into Astoria from a cruise on the outside, and laid up at her wharf, when the master went ashore, and left the libelant with the aid of the two deckhands, to put a few tons of coal aboard, as usual, preparatory to the next trip. In doing this, a gang plank about 18 inches wide was placed one end on the dock and. the other in a sling over the deck of the tug, which was several feet below the dock, and stayed so as to keep it from swaying to either side. The coal was carried out on the plank in iron wheel-barrows and then dropped down the hatchway into the bunkers. The libelant wheeled one of the barrows, the handles of which would work up and down three or four inches and cause the barrow to tip from side to side, and on one occasion the libelant thereby lost his balance and fell to the deck of the tug and broke his leg, in consequence of which he was lai<i up in the hospital, and rendered unable to work for a considerable period. It was customary to coal this tug in this way, and the master, who was fully aware of the fact, did not interfere to prevent it, or make objection to it. There was also an iron chute on the dock, by means of which the coal could have been,sent down into the bold through a manhole in the deck, but that involved the further labor of movingj it from w;here it fell, into the bunkers.