(dissenting).
I must dissent from the conclusion reached by the majority in this case.
As stated by the majority, the basis of the appellee’s complaint was the allegations:
“That by virtue of the issuance and service of said Writ of Garnishment * * * they were unable to attach or levy upon any property then owned by INTERNATIONAL ORE CORPORATION and out of which recovery might be had when and if judgment was entered for the recovery of the C. W. NASH notes. No such action was available until it was determined, * * that the claims of INTERNATIONAL ORE CORPORATION were without merit and that the garnishment secured by the bond of the defendant in such action was wrongful.
“At the time of the filing and service of said Writ of Garnishment, and upon the date of the garnishment bond issued by the defendant in said action, INTERNATIONAL ORE CORPORATION had ample property out of which recovery could have been made on plaintiffs’ notes.”
I disagree with the statement of the majority that the appellee herein, Nash, was prevented from attaching any property owned by International Ore Company in the event he filed suit as the garnishment provision goes only to property owned by the debtor and not to property of the garnishee. The authority cited adds no light to that conclusion. However, this point has no bearing upon the issues involved as Nash had no obligation to attach regardless of whether he was or was not able to do so- and his failure to do so imposes no limitation upon his right to recover.
The loans made by Nash were secured by the stock pledged by the only three stockholders of the corporation. Nash neither requested nor secured a chattel mortgage *281■upon any of the property then owned by the ■corporation or to be purchased by it in the future. He was apparently satisfied that the stock was of ample value to protect his loans. When the notes were not paid Nash made a demand upon the escrow holder to sell the stock according to the provisions ■of the pledge agreement. This could not be done as the writs of garnishment had been issued, one to the escrow holder, the other to the corporation.
If the writs of garnishment had not been served and the escrow holder had offered the stock for sale in accordance with the pledge agreement, Nash would have been able to purchase the stock for an unknown amount or would have received the proceeds of the sale in the event of the purchase thereof by another. At the trial the possibility of any other person buying the stock was completely ignored and the case presented upon two theories. One, that by buying the stock Nash would have become the sole owner of the corporation and would have owned all of its assets, thereby recovering the amount of his loans. The other, that by becoming the sole stockholder he could take over the operation of the mine and by the profit to be made from the operation eventually recover his loss. This latter theory was strenuously objected to by the defendant but was allowed by the trial court which accepted evidence thereon.
In allowing evidence upon this theory the court was in error. However, in view of the fact that the majority did not consider that assignment of error, it will not be considered in this dissent except for one point which will be brought out later.
Under either theory presented at the trial, the appellee failed to sustain the burden of proof required to support the judgment.
A review of the transcript clearly shows that there was no evidence presented to prove that any property upon the mining claim was the property of the corporation other than the caterpillar tractor which was used as a power unit and which was purchased on a contract. The evidence clearly showed that the contract was in default, that $4,498.26 was due, and the condition of the machine was unknown. While there may have been a $2,000.00 equity in the machine by virtue of money paid, there can be no finding of such in the absence of testimony concerning the condition of the machine and the market value of a used machine at that time in that location. The other items listed by the majority were never connected to International Ore as owner except by speculation. The best evidence of this is from the reporter’s transcript wherein the trial judge stated:
“Well, what I can’t understand is, there has been no testimony what*282ever as to who owned that equipment at all.
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“There have been surmises, but no direct testimony * * *.
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“ * * * he didn’t know anything about the ownership; he saw the property there; * * *.
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“ — but as to the rest of the property, he didn’t know whether it was owned or leased or what it was. I am sure he testified that.”
During this same period counsel for Nash stated:
“The testimony of Root is that this particular property was placed on there by the International Ore.” (Emphasis supplied.)
The Court replied:
“That is right, but maybe it belong to somebody else. I imagine mining equipment of that kind can be rented.”
There was absolutely no differentiation made between an installed cost and a market value of personal property. The mine did not belong to International Ore, it was on purchase agreement which was in default. Any property attached to the realty was certainly not available to Nash unless he became the purchaser of the mine. These facts, coupled with the lack of proof of ownership fall far short of proof by a preponderance of the evidence.
Should Nash have become the sole owner of the pledged stock, he would not have been entitled to all of the property of the corporation free and clear of any liabilities. This property did not belong to the individual, it belonged to the corporation. Creditors of the corporation could not be ignored nor could its liabilities be pushed aside. Nash had no lien on or prior right to the assets of the corporation. All that he had was the stock. Therefore, in order to determine the results of the wrongful garnishment, we must know what the value of the stock was at the time the writs were served as compared to the value at the time the stock was finally sold. Knowing what the assets of the corporation were is of no value standing alone. Appellee recognized this principle when he stated in his brief that
“It is obvious from this, [the pledge agreement] that the corporation knew, and the surety on the Appellant’s bond also knew, that, if the stock was not-sold for a sufficient amount to satisfy Mr. Nash’s loan, the stock would be bought in by him and he would then have full control of all the corporate assets.”
He would also have the full obligation of all the corporate liabilities. Therefore, in order to ascertain the damages recoverable *283directly and proximately resulting from the seizing or impounding of the property in the hands of the garnishee we must determine the value of that which was garnished, to-wit, the stock. The testimony was uncontradicted that the stock had no market value at the time that it was pledged and had no market value at the time it was sold. The value of corporate stock which has no market value must he determined by a comparison of its assets and liabilities. American Surety Company v. Duvall, 22 Ariz. 261, 196 P. 457; Tevis v. Ryan, 13 Ariz. 120, 108 P. 461. Appellee chose not to follow this well-accepted principle, and offered no proof as to the assets and liabilities of the corporation other than the broad statements heretofore pointed out which were without foundation. The majority state that proof would have to be offered to show that the stock had declined in value. This proof was not made. The assets listed by the majority did not prove value. For example, they state that there were two new pickup trucks placed on the premises by Mr. Simpson and International Ore. No evidence was presented as to title. Was it in Simpson or the corporation? No evidence was shown as to the value of the trucks, whether they were clear or encumbered. If the power plant was heavily mortgaged, it could be assumed that all the other equipment was also mortgaged. Its value then was pure speculation. The very weakest testimony, and that relied on by the majority, was the quoted answer of Mr. Corwin, to-wit:
“Completely installed where it was located, I would say in the neighborhood of $100,000. Of course, the cost of the units themselves in Phoenix or Los Angeles would be different altogether. If you are asking for the complete installation of each setup there, I would say in the neighborhood of $100,000.”
This testimony, as admitted by the majority, had little value. They merely conclude that it was sufficient to return $25,-000.00. The testimony clearly revealed that by far the greatest part of this estimate on value was connected not with saleable items of personal property but were in relation to permanent improvements that were of value only in the operation of the mine, such as the mill, the kiln, a rebuilt crusher and retort, all repaired or rebuilt. While these items might well make up the overall value of the mine as an operating unit, there was no testimony of value upon a forced sale. This was the primary part of the figure of $100,000.00. An installed price is not the proper way to fix value unless it is directly related to the value of the corporate assets which would then be reflected in the value of the stock. This not being done, the testimony has no value.
*284The crux of the entire matter lies in the undisputed testimony that the stock had no value. The value of a corporation is reflected in the value of its stock. Here it was the stock that was pledged, it was the stock that was garnished. The evidence conclusively shows that the stock had the same value at the time that it was sold as it had at the time it was garnished. There being no diminution in the value, there has been no showing of damages from the wrongful garnishment.
At the trial of this action, the plaintiff in effect abandoned the theory of tangible assets and proceeded upon the basis that his damages arose from his being prohibited from gaining control of all of the capital stock of the corporation which had been pledged and was in the hands of the escrow holder. That, if he had been allowed to compel the escrow holder to sell the pledged stock, and if he had been the purchaser at the sale, he would have been able to recover his $25,000.00 from the operation of the mine. This testimony was allowed by the Court over the objections of the appellant.
The plaintiff was allowed to testify as to the amount of money he could have made by operating the mine if he had been able to purchase the stock at the time his notes became due. In fact, he testified that this was his intention, and was. his proposed method of recovering his $25,000.00 loan. In connection with this. testimony he was allowed to state the findings of an assayer which had been contained in a lost report. It was error to> admit such testimony as it vitally concerned the testimony as to the profits that, could have been made from the operation, of the mine and mill; it constituted reversible error. However, even with such, testimony the plaintiff failed to show damages other than those based upon speculation and conjecture.
It is plain that the judgment entered herein was not based upon proved damages-flowing naturally from the wrongful garnishment.
It is my considered opinion that the majority in this case are allowing a judgment based upon speculation and conjecture to stand. This is not the law and will only serve to confuse the question when presented to a trial court. I believe the case should be reversed and remanded for further proceedings.
STRUCKMEYER, J., concurs in this dissent.