(dissenting).
The evidence in this case is insufficient, in my opinion, to sustain recovery of any damages. In his dissent in which I concur Judge Biegelmeier points out the deficiency in the evidence regarding actual damages.
Plaintiff's cause of action for exemplary damages is based on defendant's alleged malicious, oppressive, and unlawful act of interfering with a farm auction sale. However, the facts show plaintiff took possession of defendant's farm under a written lease in expectation of receiving an FHA loan. When the loan was refused the parties tried to operate under a compromise arrangement which did not prove mutually satisfactory. During this period plaintiff purchased 35 ton of hay from defendant at $12.00 per ton. This was never paid.
When plaintiff made plans to sell out and leave defendant threatened action to collect the money owed. He sought the aid and advice of an attorney (not one of the attorneys of record) for this purpose. Instead of utilizing the collection remedy of garnishment to attach the farm auction sale proceeds the attorney prepared and served a Notice of Agister's Lien. Because of this notice the auction sale was delayed a short time.
Like the mechanic's lien our agister's lien is possessory in nature, Chapter 39.10. Notice of the lien is not necessary or authorized by statute. Such notice was the product of the attorney's imagination. He prepared it, signed it, and had it served upon plaintiff. This was all done without defendant's knowledge. *309The first time defendant saw the Notice of Lien was after it had been served at the auction sale.
In my opinion the record fails to show any tortious, unlawful, or injurious act committed by defendant which would justify the imputation of exemplary damages. He did not threaten or initiate criminal proceedings. The result here places a creditor seeking payment of an honest debt in a precarious position if his attorney inadvertently pursues the wrong legal collection or compensatory remedy.
I would reverse.