Atherton v. Fowler

46 Cal. 323 | Cal. | 1873

By the Court, Belcher, J.:

This action was commenced May 25th, 1863, and has been once before in this Court. It is reported in 39 Cal. 412.

Upon the last trial, which occurred in April, 1871, the defendants obtained a verdict for six thousand seven hundred and fifty dollars, the value of four hundred and fifty tons of hay at fifteen dollars per ton, and for five thousand five hundred and nineteen dollars and twenty-nine cents, interest thereon at the rate of ten per cent per annum from May 26th, 1863—making in all twelve thousand and sixty-nine dollars and twenty-nine cents. Judgment was not entered on the verdict until October 17th, 1872, when, interest being added to the amount found in the verdict, it was entered for thirteen thousand eight hundred and ninety-six dollars and forty-three cents, as a personal judgment against the plaintiffs, who are the executors of Thomas S. Page, deceased. It is now objected that the judgment is erroneous, because, while the jury must have found the value of the hay at a time nearly a year subsequent to the taking, they allowed interest from the time of the taking; because interest was allowed after the passage of the Act concerning interest, of March 30th, 1868, at the rate of ten per cent per annum, when it should have been at only seven.; because interest was allowed between the times when the verdict was rendered and the judgment was entered up; because the judgment was made a personal one against the executors instead of being made payable in due course of administration; and because the verdict was excessive as to the quantity of hay taken.

Counsel for respondents admitted on the oral argument that the judgment was erroneous, and should be modified in all the respects named except the last. We are of the opinion that it is also erroneous in the respect last named. In the complaint the hay is estimated at five hundred tons, more or less. The witnesses for the defendants estimate the whole quantity at from four hundred and eighty-five to five hundred and fifteen tons. Taking the mean of these estimates, it would give five hundred tons. But of this one of the witnesses for the defendant says there was left on the field, and not taken away by the Sheriff, probably a hundred or a hundred and fifty tons, and another says the quantity left was more than a hundred tons. Taking the mean of these estimates as a hundred and twenty-five tons, and we should make the quantity taken by the Sheriff three hundred and seventy-five tons.

On the part of the plaintiffs, the highest estimate was three hundred and seventy-five tons. The witness Hastings says: “I received it from the Sheriff of Solano County; when I received it, some part was in windrow, some in swath, some in stack, and a little baled; I gathered it, baled and shipped it to San Francisco; I think the quantity was three hundred and seventy-five tons.” Other witnesses for the plaintiffs make the quantity received and sold still less. "We think, in view of the testimony, it may fairly be assumed that the quantity taken by the Sheriff did not exceed three hundred and seventy-five tons, and that the verdict was excessive in awarding the defendants the value of seventy-five tons not taken from them.

The other points in the case are substantially the same as were made and overruled in Atherton et al., Executors, v. Welcome Fowler et al., ante, p. 320.

It is ordered that the judgment be reversed and the cause remanded, with directions to the Court below to proceed to try the case anew, unless within twenty days after the filing of the remittitur in the Court below the defendants shall file with the Clerk of that Court a written consent that the judgment be modified by striking out the damages therein awarded, and inserting in lieu thereof the sum of eight thousand nine hundred and eighty-nine dollars; and upon such consent being filed, it is ordered that the judgment be modified accordingly, and also that it be made payable in due course of administration.

Mr. Chief Justice Wallace did not express an opinion.