57 P. 1050 | Kan. Ct. App. | 1899
The opinion of the court was delivered by.
This action was brought- by the Askew Saddlery Company against L. W. Hindman for the conversion of a stock of saddlery and harness. A trial was had, resulting in a judgment for the plaintiff in the sum of $164.24. A motion for a new trial was overruled, and the defendant, as plaintiff in error, presents the case to this court for review.
The principal facts as disclosed by the record are as follows : One Susie Sands, on January 7, 1896, was engaged in the saddlery and harness business under the name of Sands & Co., at Lawrence ; on that date she mortgaged her stock of merchandise to various parties, as follows : A first mortgage to Guy Bennett for $385.75 ; a second to Belle Sands for $352.16; a third to M. Abernathy for $200 ; and a fourth to Askew Saddlery Company, Atchison Saddlery Company, and three other mortgagees named, to secure an aggregate of $1002.33.
On the 29th day of January, 1896, and while the goods were in possession of Hindman, the defendant in error demanded possession of the same under the fourth mortgage, which demand was refused. Only one other of the creditors included in the fourth mortgage took any legal action against the sheriff; at the time of the rendition of its judgment the court gave these two creditors judgment for the full value of the goods, less the interest of the prior mortgagees therein, but at the hearing upon the motion for a new trial, with consent of these creditors, modified the judgment by giving them that share of the value, less the interest of the prior mortgagees, that their separate demands bore to the total amount of the demands of all the creditors secured by the fourth mortgage.
The first question presented by the assignments of
It is also contended that the court erred in admitting incompetent testimony. It is here contended that the court erred in permitting one Sands to testify : “ Ques. Will you please state what the fair market value of that stock of goods, described in that chattel mortgage, was at the time of the order of attachment in the Atchison Saddlery case was levied upon a portion of that stock. (Objected to as incompetent and irrelevant.) Ans. About $1400.” The contention made is that this testimony called for the conclusion of an expert witness, and that no proper foundation had been laid. Technically, the objection made in the trial court did not present this question. It appears that Sands had charge of the goods prior to the execution of the mortgages and levy of the execution thereon ; that he afterward assisted to sell the goods as agent for the mortgagees, and that he knew all about the stock of goods, its cost, its value, and what if actually
The next claim is that the court erred in finding that the goods seized by the sheriff were of the value of $498.06 at the time of the seizure and when demand was made, and .that the value of the entire stock of goods was $1200. It contended that there is no evidence to show the value of the goods seized. The appraisement made by the sheriff at the time he seized the goods was offered in evidence, and is prima facie evidence of value as against the sheriff. The appraisement is not copied in the record, and we must therefore presume that the finding of fact is supported by the evidence. The evidence as to the value of the stock of goods is conflicting; witnesses place the value at from $900 to $1400 ; $1200 is as likely the actual value of the goods as any amount which could be determined from the evidence; it appears that the goods sold for about $1400, the expense of selling them being something less than $200. No witness gives any definite amount of expenses connected with the selling of the goods. The value as found by the trial court seems to be a fair value of the goods under the testimony. Such finding is supported by the evidence, and, we think, by the weight of the evidence.
It is next contended that the court erred in rendering judgment against plaintiff in error. Upon the findings of fact, the court very properly rendered judgment against plaintiff in error. He contends that the goods attached by him were never removed from the possession of Clarke. He levied upon and took the goods into his possession January 11, 1896; he had possession of the same when the defendant in error
Finally, it is contended that the court erred in overruling the motion for a new trial. The argument upon this assignment of error is confined to the question of newly discovered evidence. Plaintiff in error relies upon two affidavits in support of this contention. One is the affidavit of L. C. Poehler, an attorney in the case, who testified that he had a conversation with J. G-. Sands, a witness ; that the witness stated that he had been mistaken in his testimony in regard to the amount of money left over from the proceeds of the stock after paying the claims of Bennett, Sands and Abernathy and the expenses ; that the amount was about $85, and not $200 or $300, as testified. Sands was a witness on the trial of the case for both plaintiff and defendants ; if he testified to the amount of money left after paying the three mortgages, we are. unable to find such testimony in the record. There were no questions asked or answered as to the amount of money realized for the goods in excess of these claims, nor was the witness examined on that question.
Plaintiff in error also filed the affidavit of H. S. Clarke, in which he' testified that, after paying the claims of Bennett, Sands, and Abernathy, and the expense of sale, there remained in his hands about $85; that he had charge of the sale of the goods ; and that the goods were sold for their reasonable market value. This man was also a witness. From his testimony it was apparent that he could give information upon the proposition if he had been questioned, but he was not asked any question tending to elicit this testimony.
The judgment is affirmed.