Pollock v. Gantt. POLLOCK V. GANTT. (69 Ala. 373) Damages - conjectural — agency. In an action on an attachment bond, a witness may testify to the extent of a merchant's business, and the rate or average of his net profits, if within his knowledge, but may not give his opinion as to the loss he will suffer by the breaking up of his business; nor is it competent to show that by reason of the stopping of his business he lost advances that he had made, and possible profits on shipments of merchandise.* Where an attachment is sued out by an agent without authority, but the principal does not repudiate the suit, the principal is liable for actual damage. A CTION on an attachment bond. The opinion states the case. The plaintiff had judgment below. Farnham & Rabb, for appellants. Stallworth & Burnett, contra. STONE, J. The present is a suit by a merchant, and complains that Pollock & Co. wrongfully and vexatiously sued out an attachment against him, and procured it to be levied on his stock of merchandise. The suit is on the bond given to procure the attachment. The special ground of the attachment was, "that the said M. A. Gantt has moneys, property or effects liable to satisfy his debts, which he fraudulently withholds." Two other attachments had been previously, but on the same day, sued out against Gantt by other creditors, and had been levied on the same stock of merchandise. The ground on which those other attachments were issued was the same as that on which the present one was sued out; and the recoveries in those prior suits greatly exceeded the sum the merchandise yielded, after setting apart to the defendant $1,000 in value of the goods, claimed and allowed to him as exempt. The attachment in favor of Pollock & Co. was sued out by an agent, and the record is silent as to the authority under which the agent acted. The complaint sets forth a copy of the bond, avers that the alleged ground on which the attachment was issued is untrue, and *See Ætna Life Ins. Co. v. Nexsen (84 Ind. 347). 43 Am. Rep. 91. Pollock v. Gantt. avers separately, first, that it was wrongfully sued out, and second, that it was wrongfully and vexatiously sued out. It contains also an averment of special damage, "that at the time of suing out and levy of said attachment on the goods, wares, chattels and merchandise of the plaintiff, by the defendants, J. Pollock & Co., he, the plaintiff, was engaged in the mercantile business, and had a good reputation, credit, business and good customers; and that by and in consequence of the levy of said attachment on his property and effects, his business, reputation and credit have been destroyed and lost, and his customers have withdrawn to the loss and special damage of the plaintiff," etc. It will be observed that the special damage herein averred relates to his reputation and credit as a merchant, and the value and profitableness of his business as a merchant. Among the general rules for the recovery of damages are the following: That they must be the natural and proximate consequence of the wrong done; not the remote, or accidental result. And special damages can be recovered only when they are not too remote, and are specially counted on and claimed in the complaint. What are termed speculative damages- that is, possible or even probable profits, that it is claimed could have been realized but for the tortious act or breach of contract charged against defendant - are 100 remote and cannot be recovered. Culver v. Hill, 68 Ala. 66; Donnell v. Jones, 13 id. 490; O'Grady v. Julian, 34 id. 88; Boling v. Tate, 65 id. 417; Sims v. Glazener, 14 id. 695; Burton v. Holley, 29 id. 318; Higgins v. Mansfield, 62 id. 267. The ground on which special damages are claimed in this case may be summarized as follows: "That plaintiff was a merchant of good reputation and credit, had good customers and was doing a good business, and that by the issue and levy of the attachment, his credit was destroyed, and his business broken up. The issue formed on these averments opened the door for proof and disproof of every material fact embraced within the issue thus formed. It opened the door no wider. It did not let in evidence of any special damage, of which the averments in the complaint give no notice. This, for the obvious reason, that any other rule would operate a surprise and injustice to the defendants. Hence the rule requiring special averments, to authorize a recovery of special damages. And if the damages claimed be of the class called speculative, or otherwise too remote, even special averments will not authorize their recovery. Pollock v. Gantt. The general rule is that only facts can be given in evidence. Facts are sometimes simple, sometimes collective. Still, the witnesses speak only of facts. It is for the jury to draw inferences and conclusions. There are exceptions to this rule. Experts can testify to opinions; and there are many questions upon which a non-expert witness may express his judgment or opinion. Value, length of time, distance, and many others, fall under this class. So, good or had character, good or bad credit, is a conclusion of fact, partly based on opinion and judgment, founded more or less on reputation; and the proper predicate being laid, any one may testify to it as a fact; a collective fact, made up of many known ingredients. The proper predicate to be laid is, that the witness has sufficient knowledge of the subject - character or credit- about which he proposes to testify. So, if a witness has sufficient knowledge, he can speak of credit as a fact, and the extent of it. He cannot speak of its value in dollars and cents. That is a question of inference for the jury to draw. And a witness may testify to the extent of a merchant's business, and the rate or average of profits he may realize on sales, above expenses, if these are matters within his knowledge; but he cannot give his judgment or opinion as to the extent of loss a merchant will suffer by the breaking up of his business. Such question is dependent on so many elements of fact and circumstance, that any estimate that might be attempted would necessarily be opinion, or conclusion. This is a question for the jury, not for direct testimony. Proof was offered by plaintiff, and received by the court against the objection of defendants, that plaintiff was making advances to timbermen and others, and that thereby he had become interested in the handling of timber and crops; and his mercantile business being stopped, he lost these advantages, lost his advances, and lost the shipment of his timber. These matters of proof, each and all, were inadmissible. There was no averment in the complaint to authorize them, and if there had been, the damages claimed on those accounts are speculative and too remote. In this case the attachment was sued out by an agent, and there is no proof that the agent was authorized or instructed to sue out the process. Neither is there proof that the principal ever repudiated the suit. It was prosecuted to judgment. This subjected the principal to actual damages, if no cause existed for suing it out. He would not be responsible for the malice, vexatious conduct, or VOL. XLIV — 66 Mayer v. Taylor. wantonness of the agent, unless he caused, or participated in such evil motive. Malice or vexatiousness in the agent, and only in him, does not expose the principal to vindictive damages. Kirksey v. Jones, 7 Ala. 622; McCullough v. Walton, 11 id. 492. The defendants ought to have been permitted to prove, that previous to the suing out of their attachment, the agent by whom it was done was notified that other creditors of the plaintiff had on that day sued out attachments against him, on the same alleged ground as that set forth in defendant's attachment. This testimony was admissible on the question of exemplary or vindictive damages. It does not bear on the question of actual damages. No matter how well founded the belief of the attaching creditor, that a statutory ground exists for suing out the attachment, if he mistake, or be misinformed, and there be in fact no ground for this extraordinary process, then the attachment is wrongful, and there may be a recovery of the actual damage done. This is measured by the actual injury which the issue and levy of the particular attachment occasioned. It extends no farther. Several of the rulings of the Circuit Court are not reconcilable with the views expressed above. Reversed and remanded. A mortgage on an unplanted crop conveys only an equitable title, but this attaches instantly on the planting, and is superior to a second mortgage executed prior to the planting, the second mortgagee having notice of the former mortgage. (See note, p. 525.) Mayer v. Taylor. SOMERVILLE, J. The subject of mortgages on unplanted crops, not in esse at the time of the conveyance or assignment, has been the subject of much discussion, and the adjudged cases are greatly conflicting. Some of them hold that such a mortgage is void, and conveys no title to the crops, either legal or equitable. Hutchinson v. Ford, 9 Bush, 318; s. c. 15 Am. Rep. 711; Comstock v. Scales, 7 Wis. 159. Others hold that they are valid at law, and good to convey a legal title. Arques v. Wasson, 51 Cal. 620; s. c., 21 Am. Rep. 718; Robinson v. Ezzell, 72 N. C. 231; Jones on Chat. Mortg., § 143. Neither of these extreme views, however, has been adopted by this court. Its doctrine in reference to this subject is now. firmly settled, that a mortgage executed by the owner, or the lessee of land, on a crop which is not planted, but is to be planted in futuro, conveys to the mortgagee a mere equitable interest or title, which will not support an action of detinue, trover, or trespass. Grant v. Steiner, 65 Ala. 499; Rees v. Coats, id. 256; Booker v. Jones, 55 id. 266; Abraham v. Carter, 53 id. 8. This view is, in our opinion, supported by the weight of authority. Moore v. Byrum, 10 S. C. 452; s. c., 30 Am. Rep. 58, and note, 63; Fonville v. Casey, 1 Murph. 389; 4 Am. Dec. 559, note, 560; Sellers v. Lester, 48 Miss. 513; and other cases cited in Grant v. Steiner, supra. The principle lying at the basis of these decisions is, that a thing having a potential existence may be mortgaged or hypothecated. By potential existence we understand a present interest in property, of which the thing sold or conveyed is the product, growth or increase, as opposed to a mere possibility or expectancy, not coupled with such an interest. Benjamin on Sales, § 78; Low v. Pew, 108 Mass. 347; s. c., 11 Am. Rep. 357. Hence an assignment of future wages, there being no existing contract of service, is invalid; but the assignment is good where there is such a contract of service. Mulhall v. Quinn, 1 Gray, 105. It is commonly said that a man may sell the wool to be clipped from his sheep at a future time, or the milk his cows may yield in the coming month or year, and the sale is valid; but not so as to the wool of any sheep, or the milk of any cow which he may acquire at any time in the future, even though it be but the next hour. Benjamin on Sales, § 78. The clear distinction is that in the latter cases, the subject of the contract is not in rerum naturæ, or as is commonly said, in esse. "Land is the mother and root of all fruits. Therefore he that |