147 N.W. 982 | S.D. | 1914
The Elevator Store ‘Company was a domestic corporation doing business- in the city of Webster, Day County. Its stock -was divided into 750 shares- of the nominal value of $100.00 per share. The plaintiff Ameson, ;wias the owner of 250 of these shares. On Jan. 22, 1910, he executed and delivered to the defendant Ner-ger, seven promissory notes, aggregating $16,-500, bearing interest at 8 per cent per annum-, and to secure payment thereof, -executed a-nd -delivered a chattel mortgage on said stock, which contained a provision that upon -default, the mortgagee was authorized- to sell the shares- -of stock at -public sale, as .provided by -law. Default was made in payment -of -one of the notes due Jan. 1, 1912, and -of interest on the remaining notes. The mortgagee foreclosed by advertising the property for -sale, -at the fron-t door of the Elevator Store building, in the town of Webster, and himself -bid it in for an amount sufficient to -satisfy the indebtedness. Thereafter, N-erger sold and transferred the stock to one Smail.
The answer admits these facts, but alleges that the sale was made at the' front door of the Elevator Store building at the request of, and with the knowledge and consent of the plaintiff, and that plaintiff agreed to' and acquiesced in said sale, after the sale and before the stock was transferred to the purchaser on the books of the corporation.
The answer also admits that Nerger sold the shares of stock to Andrew Smail, after he purchased if, at the foreclosure sale. The answer also alleges that the stock was' not of any greater value than the amount of plaintiff’s indebtedness on the promissory notes, to-wit: $16,746.60. Defendant also pleads- the indebtedness as a counterclaim, and alleges that the sum1 of $17,746.60 is due thereon, and prays that the amount be set off. against any judgment recovered by plaintiff.
“After the conversion of property has become complete, the wrongdoer cannot escape liability nor lessen the actual damage recoverable by a tender back-of the property.” Dooley v. Gladiator Co., 134 Ia. 468, 109 N. W. 864, 13 Ann. Cas. 297.
Defendant' appeals from the judgment thereafter entered, and from an order overruling motion for a .new trial, and' assigns as error rulings on evidence and in the giving of certain instructions.
“But the law seems to be quite well settled that when the rule for the measure of damages is fixed and definite -and the case discloses the necessary facts to enable the court to determine the exact sum which the plaintiff is entitled to recover under the verdict, the count may properly make a conditional order that a new trial be -granted unless- the excess be remitted.”
The trial court entered- judgment for the correct amount.
Appellant assumes that answers to- these questions would have disclosed plaintiff’s consent to and acquieseuce in the -sale of the mortgaged property, at a place other than- that designated 'by the Board of Commissioners, but there i-s nothing Whatever in the record, to indicate that the answers to these questions would have disclosed any statements amounting to an estoppel, if the witness had been permitted- to answer. In tbi-s state of the record, it is impossible -for this court -to say that the trial court erred to appellant’s prejudice in sustaining the' objections.
“Tó show available error, the plaintiff should have gone further, and offered to- prove the substantive fact to which this question of knowledge on the part of the witness was only introductory or preliminary. To- show that this ruling did not constitute material and available error, we have only to' suppose that we reverse this case on that ground, and upon a retria-l the witness is asked the same question, and his answer is, ‘No- I do not.’ ”
In Houghton v. Clarke, 80 Cal. 417, 22 Pac. 288, the rule in such cases is stated to be:
“If a question does not itself indicate whether the answer would be material or not and there is no' offer to prove the facts sought to be elicited, it is not a material error to exclude the question.”
In State v. Yokum, 11 S. D. 544, 79 N. W. 835, it was held that excluding a question asked of defendant on trial for murder, as to what occurred between himi and deceased while out walking together, is not erroneous, where no offer was made show- ' ing that any material fact could have heen elicited, had the question been answered. Briston & Elsoow v. Skabble, 17 N. D. 271, 115 N. W. 841; Soules v. B. of A. Y., 19 N. D. 23, 120 N. W. 760; Regan v. Jones, 14 S. D. 591, 105 N. W. 613. There .was no offer to show any statements made by plaintiff in the conversations referred to', which in any manner would tend to sustain the allegations relied upon .as an estoppel.
The facts being conceded, the trial court instructed the jury that the attempted foreclosure sale, constituted a conversion of the stock as a matter of law. Appellant excepted to- this instruction. but in his brief, concedes 'that the error in the instruction is merely a consequence of the court’s error in excluding evidence tending to show that the mortgaged -property was sold at -the wrong place, upon request of plaintiff. What has- already been said in regard to: the exclusion of evidence -without offer of proof, disposes of this contention, In- the absence of any evidence tending to substantiate the alleged estopp-el, the trial cpu-rt did not err in. its failure or refusal to submit that issue -to the jury, and reversible error i-s not shown by tire record.
“Where one person makes an 'entry from’ memoranda or information furnished by another, or two or more persons have otherwise cooperated in making an entry, the entry will be admissible in connection- with the testimony of all- the parties participating. Indeed it is held that where the clerk who makes the entries has no knowledge of their correctness, but makes them as the items furnished toy another, as for instance where entries are made toy a bookkeeper from reports -made by a foreman, it is essential that in addition to the -oath of the party making the entry the party furnishing the items should testify to their correctness, or that satisfactory proof thereof, such as the transactions are .reasonably susceptible of, from other sources should be produced.” 17 Cyc. 394 (7)-
The same rule applies when the evidence is offered in favor of a municipal -corporation. Darlington v. Atlantic Trust Co., 68 Fed. 849, 16 C. C. A. 28; Union Electric Co-, v. Seattle Theatre Co., 18 Wash. 213, 51 Pac. 367; Price v. Standard L. Ins. Co., 90 Minn. 264, 95 N. W. 1118; Chicago Lumber Co. v. Hewitt, 64 Fed. 314, 12 C. C. A. 129.
There are certain exceptional cases in which the courts have held that records kept in the usual course of business 'which ar-e made u-p from- -t-he memoranda furnished by numerous employees in a complicated and -complete organized business -system, -are admissible without the testimony of each employee. In certain other cases, ■ death, insanity, -sickness or residence beyond the jurisdiction have 'been held to excuse the -absence of the testimony' of parties who made the record or memoranda. B-u-t 'all such -exceptions are founded upon necessity and convenience in -the transaction of judicial business, the assumption of regularity in -systematized business methods, and the presumed absence of -improper motives on the part of numerous employees-. In -the -case before us one of the -parties to the making of this inventory wa-s- -the .plaintiff himself. It wa-s prepared shortly before tine foreclosure. It is -the only evidence offered by plaintiff to -show the actual value of the corporate stock. The -situation is not sufficient to exclude- the suggestion of employee’s motives in the preparation of the inventory.
The -record in this case, shows that the witness Chilson and at least four other persons were engaged in- making the inventory ; that Chilson entered in the inventory book the items furnished 'by •these persons, and himself did some of -the inventory work. It is apparent that at least four-fifths of the inventory must have been made from memoranda furnished by the four assistants, and Chilson says he cannot testify to the correctness of the items furnished him by the others. Why the four assistants were not called to testify is not disclosed by the record. The objection to' the offer directly called attention of respondent to the fact that the entries were not authenticated -by the testimony of those engaged in making the inventory. We are clearly of the opinion the trial court was in error in receiving the inventory in evidence, without proper authentication, as against the defendant Merger.
The order and- judgment of the trial court must be reversed and a new trial granted.