2 S.D. 631 | S.D. | 1892
Some time prior to the commencement of this action respondent was the owner of two horses, a wagon, and a set of double harness, upon which various persons held chattel mortgages. In the fall of 1887 he turned them over to one Kelly, as it would seem from the evidence to be kept for him. Subsequently the property came into the possession of appellant, —precisely why or how is not clearly disclosed, except that appellant appears to have paid certain mortgages, under one or more of which the property was advertised to be sold, and thus to have gotten possession of the same. From this point on there is conflict as to the facts, appellant claiming an agreement with respondent by which he was to keep the property as security for the advances so made, and respondent denying such agreement. Respondent brought this action against appellant, after an alleged demand and refusal, for the value of the property. The case was tried by a jury, and upon verdict judgment was rendered against appellant. After judgment appellant made a motion for a new trial, which was denied. He then appealed from the judgment and from the order refusing new trial. Respondent moves to dismiss the appeal, on the ground that one appeal does not lie from a judgment and an order refusing a new trial; that such is a double appeal, and is condemned by this court in Hackett v. Gunderson, (S. D.) 47 N. W. Rep. 546, and by the supreme court of Wisconsin in several cases cited. Hackett v. Gunderson does not control this case, because the facts are essentially different, and because the facts that made the rule a proper one in that case do not exist in this case. In that case the appeal was from two entirely separate and independent orders, having no connection with or
In this case one of the errors complained of is that the evidence did not justify the verdict, A motion for new trial was made on that ground and overruled, and the appeal is from the judgment and the decision on such motion. To dismiss this appeal because double would mean that two separate appeals should have been, and in such cases must be, taken. The question could not be reviewed on appeal from the judgment, because the motion was not made until after judgment; and an appeal from the decision on the motion for new trial, if reversed, would still leave the judgment in foi ce, with a doubtful power in the court below to disturb it, after the length of time that would usually be required to appeal and have decided by the supreme court the decision on the motion for new trial. We
As to the merits the evidence is conflicting. Appellant’s theory (and there is evidence tending to support it) is that he took the property, which was then about to be sold on mortgage, in the spring of 1888, from the possession of Norton, a mortgagee, and paid up the mortgage in order to assist respondent, who was then out of health and in financial difficulty; that he immediately advised respondent of what he had done, who seemed pleased with and acquiesced in the arrangement, and requested appellant to pay other claims against the property, and hold the same until he could reimburse him, which, upon such request, appellant did, to a considerable amount, and that none of the money so paid has been refunded or tendered; that, while so holding the property, he used it moderately in his business as a compensation for its keeping.
Respondent, on the other hand, claims (and there is evitending to support the claim) that he never authorized appellant to take possession of the property, and never subsequently agreed to or ratified the same; that he never requested appellant to pay any money for him, either on mortgages on the property or otherwise; and never agreed or consented that he might hold the property until moneys so advanced were repaid, and that he never authorized appellant to use the property. Two issues of fact were thus presented to the jury: Was appellant authorized by respondent to hold this property until his advances were paid? And, if so, had his use of the property while so holding it been such as to constitute a conversion of it? A negative answer to the first or an affirmative answer to the second of these questions would account for a verdict in favor of respondent. The jury may have found that appellant
But we are inclined to the opinion, against the argument of appellant, that our Civil Code is designed to cover and control this whole subject. Section 4403, Comp. Laws, is: “A pledgee * * * assumes the duties and liabilities of a depositary for reward.” We do not readily find elsewhere in the Code the expression, “depositary for reward;” but Section 3657 says: “A deposit may be voluntary or involuntary, and for safe-keeping or exchange.” This section is general,' and would seem to be intended to cover all kinds of deposits. A pledge is not an involuntary deposit, (Section 3659,) nor a deposit for exchange; for Section 3662 defines such deposit to be ‘ ‘one in which the depositary is only bound to return a thing corresponding in kind to that which is deposited, ” while a deposit for keeping is ‘ ‘one in which the depositary is bound to return the identical thing deposited.” Section 3661. A pledge, therefore, is like a “deposit for keeping.”. A “deposit for keeping” includes, both a ‘‘gratuitous deposit” (Section 3667) and a “deposit for hire,” (Section 3681;) but in neither may the depositary -“use the thing deposited, or permit it to be used, for any purpose, without the consent of the depositor.” Section 3671. It is provided by Section 3670 that “a depositary of living animals must provide them with suitable food and shelter,” etc., and by Section 3669, that the depositor must indemnify the depositary therefor; but whether such claim for indemnity is personal against the depositor, or constitutes a lien on the deposit is not stated. There is, however, nothing in the statute to suggest the right of the depositary to reimburse himself for such expenses by the use of the deposit, but, on the contrary, such use is forbidden by said Section 3671. The trial court instructed the jury in accordance with these views. The instructions asked for by appellant, but refused by the court,—
It is further objected that the verdict is excessive. It was for 6375.96. There was evidence tending to show that the property was worth something over 6500. Appellant claims that Jbe was clearly entitled to recoup the several amounts he had paid out to take up liens against the property, and that it is evident, from the size of the verdict, that the jury entirely ignored such claims; but whether appellant was entitled to recoup these amounts is not a legal question before us, for the reason that the court had definitely instructed the jury' that, unless such payments were made at the request of respondent, he would not be bound to recognize or repay them, and that they would create no legal obligation against him; and this must be regarded as the law of the case, for it was not objected to. Respondent testified very positively that he never authorized or requested appellant to make these payments. The jury might have so found, and, so finding, had then only to agree upon the value of the property as their verdict. Appellant did not assert his claim upon the property, or his right to reimbursement, as the assignee, legal or equitable, of the various lieus paid, but as the immediate pledgee of respondent, as security for moneys advanced at his request. The jury hav