Keables v. Christie

| Mich. | Jan 25, 1882

Campbell, J.

Mrs. Christie sued defendants below, who ■are plaintiffs in error, for trespass in talcing from her possession and selling a stock of goods of which she was owner ■of an undivided half. They acted under a mortgage given by her husband [David] and son [Albert], and under claim that it covered the entirety. The jury found in her favor, ■and errors, are assigned on the rulings of the circuit court ■of Yan Burén, where the suit was brought. It is not now ■claimed that defendants could be justified if she owned the interest in question and had not estopped herself in any way. The jury have settled this unless error is found ini the proceedings on trial.

The first and second assignments complain that it was-error to allow Mrs. Christie to state the aggregate value of the goods which she claimed to have been taken, and also-the value of the goods sold out of the stock during her own attendance on the store. As she ha'd shown a knowledge-on the subject, we think her estimate of value was admissible. And we think the amount of sales was a proper item, of testimony as one element of getting at the true condition of the stock.

"We do not think it was error to exclude evidence of' Enables’ conversations in Mrs. Christie’s absence with Albert and David Christie on their own private business.. It was foreign to her.

Assignments I to 12 relate to questions allowed to be put-to Enables on cross-examination. The only two questions-to which answers are set out related to conversations with plaintiff indicating a knowledge of Mrs. Christie’s resources,, and of her pecuniary interests. As his answers denied the-conversation, they could do him no harm. But they were-pertinent on the question of notice of her rights. As no-answers are given to the rest we cannot assume any harmi was done by the questions. The thirteeñth assignment-objects to the questions and answers bearing upon a conversation between Keables and Mrs. Christie concerning the purchase by her and her husband of these very goods.. This was clearly competent to show his knowledge.

In regard to the charges given and refused the assignments are not all sustained by the record. It was properly charged that if the defendants all participated in the trespass, they were jointly liable, and liable for the value of her interest. If there was any trespass at all, there was a conversion which damaged her to that extent; for she was not. bound, after they had sold so much of the property as they chose, to take back the remainder, unless she saw fit. A stock of goods once broken up in that way may not be very desirable, and parties who have been guilty of such a wrong: must abide the consequences.

There can be no doubt that, unexplained, a sale to two ^persons enures to them equally. And this being so, any •one knowing of such an interest must know that it can only lie transferred by the owner or his authority. An agreement to pay or actual part payment of a mortgage by the other owner cannot be made to operate as an extension of “the mortgage to cover her own interest. The court was very dull and careful in telling the jury in several different forms “that any act of hers tending-to recognize or to induce others do believe in the authority of the mortgagors to cover the ■entire property would estop her and protect the mortgagees. It was not incumbent on the court to grant the requests of ■defendants specifically so long • as most that they asked, and :all that they had a right to ask in this direction, were care-dully given.

As the measure of damage was expressly limited to the •actual loss of plaintiff the reference to malice did no harm. And the amount of the verdict leads to no suspicion that “the jury disregarded the direction on this head.

We think the charge concerning the effect of intermingling goods^* was as broad as could be asked, and possibly broader in favor of defendant than the testimony warranted.

Although the assignments are numerous they fall within a few heads, and we have discovered none which are not covered by the general charge of the court, which are not. answered by what has been already said.

There is no error in the proceedings, and the judgment must be affirmed with costs.

The other Justices concurred.

* The instructions were as follows:

“Tile jury are instructed that if they find from the evidence that the .goods covered by the mortgage were so intermixed and intermingled by the plaintiff with other goods at the time of the alleged taking that they ■could not be identified or separated from the other goods, then defend■ants might lawfully take the whole, and in doing so they would not be trespassers.

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The jury are instructed, if they find part of the goods in the mortgage were the goods of Albert Christie, purchased by him on credit or otherwise, and plaintiff bought the interest of Albert Christie in said goods, so purchased by him, that as to such goods the mortgage would be a first •and prior lien thereon, and defendants had a right to take such goods, and if they further find said last goods Were intermingled by plaintiff, or her •agents with those of the plaintiff, and that plaintiff did not separate her goods therefrom when requested, and they could not be separated, then ■defendants were justified in taking any of the goods so intermingled; that is, gentlemen, if Albert purchased the goods as his own, — as his own property, — and gave a mortgage thereon prior to the conveyance to his mother, then and in that case the mortgage would be a prior lien — a first lien upon those goods. ”