Becker v. Bailies

44 Conn. 167 | Conn. | 1876

Loomis, J.

This is an action of trespass and trover for unlawfully taking, by writ of attachment, a musical instrument, called an orchestrion, belonging to the plaintiff’s wife. The defendant moves for a new trial because the court overruled sundry claims made by him fór a mitigation of the damages.

The plaintiff, on the other hand, brings his motion in error, on the ground that the court mistook the law in deducting from the value of the instrument the amount of a mortgage upon it, due from the plaintiff to a third person.

The grounds upon which the defendant’s motion for a new trial is based are rendered wholly untenable by the facts found by the court.

The instrument in question was never returned to and accepted by the plaintiff, or applied in any way for the use, benefit or advantage of the plaintiff, nor was there any unequivocal offer to return the property; and if there had been, its damaged condition, occasioned in great measure by the fault of the defendant, would have excused its rejection by the plaintiff. The chief point made by the defendant was that the relinquishment of the attachment placed the property at once at the risk of the owner; and that the judgment should include only such damage to the property as had been occasioned prior to that time. This claim, we think, involves an erroneous assumption both of law and of fact. Without, however, discussing the law, it will be a sufficient answer to say that the relinquishment referred to did not amount either to a return of the property or to an unequivocal offer to return it. The record states the facts bearing on this point as follows:—“ Some time after the fire, and after great damage had accrued to the órchestrion, the sheriff met said Charles on the street, and informed him that he relinquished the attachment on said instrument. The sheriff kept said saloon (where said instrument was situated) locked, and gave said Charles no permission, opportunity or facility for entering the same, but held control and possession of said saloon and instrument himself, and merely informed him that he relinquished the attachment on said orchestrion.”

The record also shows that the defendant, at the time of the fire, unreasonably refused the special request of the plaintiff to remove the instrument to a place of safety, which might have been done; and the day after the fire, upon request of the mortgagees, he also refused to remove it to a dry and suitable place. It is very clear therefore that the finding leaves no ground for granting the defendant’s motion.

We proceed next to inquire whether the court erred in deducting from the ascertained value of the instrument the amount of the mortgage due from the plaintiff’s wife to Wallenbarger & Gaunter.

This question is fully answered by the decision of this court in White v. Webb, 15 Conn., 302, which was an action of' trespass and trover brought by a second mortgagee in possession of the mortgaged chattels against an officer who took them on a writ of attachment. There was a prior mortgage on the same property then outstanding and unsatisfied, which the defendant claimed should be deducted; but the court held otherwise, and based the decision upon the following well established principles:—“In actions of trover and trespass, for property taken and converted by the defendant, where there is no malicious motive on the part of the defendant, but he takes the property under a claim of right, and the real dispute is as to the title, the rule of damages is the value of the property at the time of the conversion or taking, and the interest on that sum to the time of judgment. If however the suit is brought by a bailee or special property man, against the general owner, then the plaintiff can recover the value of his special property only; but if the writ is against a stranger, then he recovers the value of the property and interest, according to the general rule, and holds the balance beyond his' own interest in trust for the general owner.”

In the decision complained of by the plaintiff there is manifest error so far as the damages are concerned, and the judgment is reversed to that extent and the case remanded.

The defendant’s motion for a new trial is denied.

In this opinion the other judges concurred.