30 Del. 366 | Del. Super. Ct. | 1918
delivering the opinion of the court:
In passing upon the motion for a nonsuit, the court will give no reasons for declining the motion on grounds one and two urged by the defendant. But on the third reason urged, that is, that there is no allegation or proof of venue, in which counsel for defendant cites Parvis v. Truax, 7 Houst. 575, 32 Atl. 1050, we fail to see that in that case the court held that the venue laid in the declaration filed was insufficient. The case seemed to turn on the proof of venue rather than the laying of the venue in the declaration.
Without passing upon the merits of the case, the motion for a nonsuit is refused.
Mr. Hurlock, a witness for the defendant, was asked:
Q. Did you sell certain furniture to Dr. Miller? (Objected to by Mr. Handy.)
Mr. Garrett:—If I do not connect this furniture up by Dr. Miller as being part of the furniture which was replevied, it may be stricken out.
Rice, J.:—We overrule the objection.
The defendant was called and asked:
What became of that furniture that you bought from Charles S. Hurlock? A. I sent it to 807-9 French Street. (Objected to by Mr. Handy,*370 who moved to strike out the answer on the ground that it showed a transaction with the deceased by the defendant, a party to the suit, contrary to the statute.)
Mr. Garrett:—This is a transaction with Hurlock, who is not a party to this action.
Rice, J.:—We fail to see how this testimony comes within the provisions of Rev. Code 1915, § 4212. We decline to strike out the answer.
Q. Do you recollect what you bought from Mr. Hurlock? A. Yes; all this stuff (referring to two leaves from the witness’ book of original entries marked for identification), rugs, chiffoniers, mattresses and the bedding, the bed, the chiffonier,_ bed, mattress and springs—yes, all this stuff. Yes; I bought all those things. Q. Were all these articles in the writ of replevin? A. Yes, sir. (Mr. Garrett renewed his offer for the admission of the book in evidence. Mr. Handy objected to the same as not such a book of original entries as should be admitted under the statute.)
Rice, J.:—We think the book offeredjjdoes not come under the statute, but under the ordinary rules of evidence. We overrule the objection.
Mr. Handy:—X. I will ask you whether you know that any one of the items in this book account of Mr. Hurlock is in this writ of replevin? A. To the best of my knowledge, they are all in there. X. As a matter of fact, do you really know in detail whether any, or all, of the articles are included in the writ of replevin, or not? A. I believe so.
Mr. Handy:—I move to have this stricken out.
Rice, J.:—We cannot exclude it.
Prayers for the Plaintiff.
That the court direct the jury to find at least nominal damages for the plaintiff for the brooch and ring returned and admitted to be the property of the deceased; and for the cut glass, because the defendant said he had given the administrator the right to take it; and for the box and contents of one hundred and thirty-five dollars, concerning which there is no conflicting testimony, and the defendant did not claim ownership; and also for the watch. And as for the articles of furniture in dispute, if the jury are satisfied that it belonged to the deceased, we are entitled, to money damages for what we have proved they were worth.
Prayers for the Defendant.
The plaintiff must prove, by a preponderance of evidence, that Catharine E. Frick owned and had the right to the exclusive possession of the goods in dispute at the time of her death, or he cannot recover. 34 Cyc. 1387, 1388.
If the jury believe that Catharine E: Frick and Dr. Miller owned the said goods, or any portion thereof, jointly or in
If the jury believe that the plaintiff did not allege and prove venue, or that the goods were taken or detained by the defendant in New Castle county, the plaintiff cannot recover.
The plaintiff cannot recover for any articles of jewelry whatsoever. ' The only matter for the consideration of the jury in this case is the household furniture described in the writ.
The plaintiff must recover, if at all, upon the strength of his own title, and not upon any weakness of the defendant’s title. 34 Cyc. 1385.
charging the jury:
This is an action of replevin brought by William H. Frick, administrator of the estate of Catharine E. Frick, deceased,, against William P. Miller, to recover the possession or value of certain chattels or articles of personal property.
As to the other articles replevied, they consisted of a money box, with contents, a gold watch, cut glass and many articles of household furniture and furnishings. The defendant gave a property bond to the sheriff for these articles and retained their possession.
The plaintiff claims that Catharine E. Frick at the time of her death in September, A. D. 1917, was, and had been for some time prior thereto engaged in conducting a hotel business at Nos. 807 and 809 French street, in this city, and that she was the sole
The defendant on the other hand claims that the property which was replevied and for which he gave property bond and by reason thereof retains in his possession was at the time of the execution of the writ of replevin his own personal property and to all of which he was entitled to possession.
'
If from the evidence you believe at the time this action was begun that the plaintiff was entitled to the possession of the money, goods and chattels replevied, or to any part or portion thereof, then your verdict should be in favor of the plaintiff either for the return of such as you may believe him to be entitled or for the value of the same.
Summing up, the verdict or verdicts you may return in this case as you may believe may be warranted by the evidence again calling your attention to what we have already said in this regard; it is your duty to find in favor of the plaintiff for nominal damages for the detention of the ring and brooch already mentioned and you may also find in favor of the plaintiff for the return of the money, goods and chattels replevied or any part thereof, or you may find in favor of the plaintiff for their value in money. Or, if you should find from the evidence that the plaintiff is not entitled to the money, goods and chattels replevied or any part of the same other than the said ring and brooch, you may find in favor of the plaintiff for nominal damages for the detention of the ring and brooch, and in favor of the defendant for the money, goods and chattels. * * *
Verdict for plaintiff for two thousand five hundred dollars.