48 Neb. 257 | Neb. | 1896
This action was commenced in tbe district court of Douglas county by John L. Watson on the bond of William Coburn, as sheriff of Douglas county, against William Coburn as principal and the other defendants as his sureties. The alleged cause of action was the conversion of a stock of furniture and musical instruments. A trial of the issues resulted in ’a verdict and judgment in favor of Watson, from which both parties prosecuted error proceedings to this court. The former judgment was by this court reversed and the cause remanded to the district court. (For the former decision see 35 Neb., 492.) In the district court, in a second trial, Watson was successful and received a verdict and judgment, and the case is presented here by the other parties for review of the proceedings during the second trial.
It appears that a corporation named the New York Storage & Loan Company was, or had previous to February 28, 1888, been engaged, in business in the city of Omaha, and was the owner of the property the alleged conversion of which was the basis of this action, and on the day just stated the corporation, being indebted to John L.'Watson for money borrowed by it of him, executed and delivered to him a chattel mortgage covering its stock of furniture and musical instruments, etc., to secure the payment of the debt. Watson then took possession of the goods and conducted the business, and was, under and by virtue of his lien, in possession of the stock on April 24 of the same year. During the afternoon of the last mentioned date, Coburn, as sheriff, levied an execution in favor of W. L. Hall, and against the New York Storage & {man Company, on the stock and took possession of it, and subsequently levied a writ of attachment in an action wherein Dell R. Edwards was plaintiff and the corporation defendant. George C. Wheeler, who was president of the New York Storage & Loan Company, it appears also did business under the style of New
One of tbe contentions of plaintiffs in error herein, both in pleading and in argument, was and is that by tbe proceedings and determination in tbe case in wbicb tbe receiver was appointed, all matters in issue in tbe present case were fully adjudicated and determined, and such adjudication constitutes a bar to this action. Counsel for plaintiffs in error outlines tbe questions Avhich be desires to urge in bis brief as follows:
“When an officer levies on a stock of goods in tbe possession of tbe mortgagee, at tbe instance of a creditor of tbe mortgagor, and, shortly thereafter, a receiver of tbe property of tbe mortgagor is appointed on tbe application of certain of tbe creditors of tbe mortgagor, in wbicb action the mortgagee is a party, and tbe sheriff is ordered by tbe court to surrender tbe goods to tbe receiver, wbicb be does, and said receiver sells those goods, wbicb sale is confirmed by tbe court, and tbe mortgagee’s lien is held to be a first lien on said goods and be is entitled to tbe money received from said sale. Quaere: Under such circumstances, is the officer liable as and for a conversion of said stock of goods?
“2. When certain of tbe goods contained in tbe mortgage and levy are held by tbe mortgagor on commission, and after tbe levy tbe mortgagee releases said goods from bis mortgage, and the officer from bis levy. Quaere: Is
“3. Did the mortgagee, having a judgment for certain costs, and permitting those costs to be paid out of the sale by the receiver, estop himself from claiming from the officer and his sureties on his bond the money so paid out?
“4. Was the judgment according to the weight of the evidence?”
The first of these questions, in all its bearings on the issues in the present case, was considered on the former hearing in this court, and it was said in reference thereto by Non val, J., who wrote the opinion: “The first question we will consider is as to the sufficiency of this defense. It is a rule, sustained by judicial decisions in this country, that where one’s goods are converted by another, the owner may sue for their value, or recover the property, but he cannot pursue both remedies. It is equally well settled that the subsequent recovery or return of the property does not extinguish the owner’s right of action against the wrong-doer for the conversion, but only goes in mitigation of damages. (Gibbs v. Chase, 10 Mass., 125; Brady v. Whitney, 24 Mich., 154; Western Land & Cattle Co. v. Hall, 33 Fed. Rep., 236.) Where goods that have been converted are returned to and accepted by the owner, the measure of damages is the market value at the time of the original wrongful taking, less the market value at the time the same are returned. (Irish v. Cloyes, 8 Vt., 30; Lucas v. Trumbull, 15 Gray [Mass.], 306.) Testing the effect of the adjudication in the receiver case by these principles, Watson is not estopped from prosecuting his •action for the conversion of the property. It is true Watson, in the case in which the receiver was appointed, in his answer and cross-petition filed therein, claimed a lien upon the property by virtue of his mortgage and asked that the mortgage be foreclosed. The property had already been sold by the receiver appointed at the request of Edwards. Watson could not recover the prop
In regard to the alleged error of the court raised in the
It is argued that the stock of goods was sold by the receiver for the total sum of $1,950, and that it was adjudged in the action in which the receiver was appointed that Watson should recover only three-fourths “of the costs by him expended in this action, and to recover from Edwards one-fourth and from Hall one-half;” that the evidence disclosed but $277 in the hands of the clerk of the court remaining of the amount realized by the receiver from the sale of the goods; that Watson should have been paid the whole sum, but suffered it to be paid out for costs, and it should be deducted in this case from the amount to be otherwise allowed him, or at least the one-fourth, as he was charged or was to pay one-fourth of his costs. In this connection it is argued that the trial judge erred in excluding from the testimony the receiver’s' report of a sale or offers to purchase the stock of goods and an order of the court confirming the sale. As we have hereinbefore said, the only assignment of error in respect to the exclusion of evidence was general, and not specific enough to present the question of the exclusion of any particular portion of testimony offered and refused; hence the error, if any, in excluding the report and order alluded to is not presented here in such manner as to be entitled to be considered. There is no evidence in the record before us of the amount for which the receiver sold the stock of goods, and if the report offered had been admitted, it would only have shown the amount for which
The only remaining assignment of error argued in the brief of counsel for plaintiff in error is that the verdict was not sustained by the evidence. Under this it is contended that the value of the stock of goods fixed by the jury, |3,000, was not supported by the evidence. The testimony on the subject of the value of the stock of goods was conflicting, but it would have sustained a finding of a much larger value than the one adopted by the jury, and would also have warranted a smaller; but, in view of all the facts and circumstances in evidence in regard to the stock of goods and its value, we conclude that the verdict of the jury in this particular is sustained thereby and will not be disturbed.
It is provided in section 596 of the Code of Civil Procedure: “When a judgment or final order shall be affirmed in the supreme court, the said court shall also render judgment against the plaintiff in error for five per cent upon the amount due from him to the defendant in error, unless the court shall enter upon its minutes that there was reasonable grounds for the proceedings in error.” It is urged on behalf of defendant in error that this case is one which calls for the application and enforcement of the provision of the statute just quoted.
Affirmed.