Conway v. Belatti

175 N.W. 703 | S.D. | 1920

POLLEY, J.

This is an action to recover damages for the alleged conversion of. a personal property. The property was in a hotel building in the city of Watertown.' Defendant Belatti was the owner of the building, and the defendant Elkins was the sheriff of Codington county. Eor some time prior to the 18th day of October, 1917, the said hotel had been occupied by one E. L. Denis, under a lease from the owner. On the date last 'named, Denis made a purported assignment of his lease on the hotel to the plaintiff and g'ave to plaintiff a bill of sale of numerous articles of personal property, consisting of hotel furniture, fixtures, and supplies — all in said building. On the 23rd day of October, 1917, the defendant Elkins, under authority of a warrant of attachment, issued in an action entitled “Belatti v. Denis,” entered the hotel building and made a levy on certain property as the property of the said Denis, and, on the same day served notice on. plaintiff that he had levied upon—

“all the light, title and inteiest [of the said Denis] in and to the following property: Beds, bedding, glassware, dishes, cooking utensils, silverware, clothing, and all personal property usually contained in, and used by the management of a hotel; said property being situated in the West Hotel.”

A custodian was placed in charge; but, within a few days, the building and contents were turned over to defendant Belatti, and no other or further steps of any kind were ever taken in said action. Plaintiff then commenced this action, claiming damages in the sum of $1,500. Verdict and judgment were for plaintiff, and defendants appeal.

Insufficiency of the evidence to support the verdict, error in the admission and rejection of certain evidence sought to be introduced at the trial, and in the giving and refusing to give certain instructions by the trial court, are assigned by appellants.

[1, 2] No exceptions' were taken at the trial to the giving or refusing to give requested instructions. Therefore those assignments present nothing for this court to review. The defendant Elkins, having taken no further steps under his warrant of attachment after making the ptu-ported levy, became liable as for conversion, if in fact the property involved belonged to plaintiff. The evidence, if competent and material, is sufficient to support the verdict.

[3] At the trial, both plaintiff and the said Denis testified as to the value of the property. On cross-examination both. of these witnesses were asked what was the consideration paid by plaintiff to Denis for the property. This was objected to on- the ground that it was not material, and the objections were sustained. Thi.s evidence was not competent or material for the purpose of showing. the value of the propert), and there was no error in sustaining the objection. If defendants wished to show by these questions the good faith of the witnesses or the correctness of their judgment in fixing the value of the property, this fact should have been called to the attention of the court at the time the objection was made.

[4] The trial court admitted in evidence over the objection of defendants, the bill of sale by which -Denis transferred the property to plaintiff. Ownership of the property was one of the principal issues in the case, and the bill of sale under which plaintiff was claiming title was admissible for what it was worth on this issue.

[5]. During the trial two lists of articles of personal property, that plaintiff claimed had been placed in the hotel by Denis and were included in the bill of sale, were offered in evidence. These offers were objected to on the ground that they were irrelevant, incompetent, and immaterial, were self-serving, and not binding upon the defendants. The exhibits were admitted by the court, but were limited to the purpose of showing the property claimed by plaintiff. Such exhibits .were properly admissible for that purpose.

[6, 7] There were certain items of property alleged by plaintiff to have been converted 'by appellants which appellants claim were fixtures, and, for that reason, were not susceptible of wrongful conversion, and that evidence of the value thereof was incompetent. These articles consisted of certain; booths that had been erected by Denis in the dining room of the hotel, and' an electric sign attached to the outside of the building. These articles, no doubt, were fixtures; but it was not shown that they could not have been removed without damage to the building. The term for which the building had been leased to Denis had not expired, and under the law-, a lessee has the unquestioned right to remove fixtures placed in a building by him for his own use and convenience, if the same can be removed without damage to the building and' are removed before the expiration of the lease. Appellants claim that Denis had no authority to assign the lease, and that has attempt to assign the same was an abandonment of his rights as tenant, and therefore terminated the lease; and that his assignee had no right to remove the fixtures thereafter. Whether Denis had a right to sublease the hotel does not appear from the evidence. He Unquestionably had the right to sell such property as belonged to him, and the purchaser was entitled to a reasonable time within the term of the lease to remove such property, including the fixtures, from the building.

The judgment and order appeared from are affirmed.