10 S.D. 256 | S.D. | 1897
Claiming a possessory right of the value of $285 by virtue of a chattel mortgage, plaintiff sought to recover, for the purposes of a foreclosure' proceeding, certain horses described therein, the value of which is admitted to be $450. Defendant, answering the complaint, which, in usual phraseology, states a cause of action in claim and delivery, alleges full payment of the notes to secure which he executed the mortgage, and demands judgment alternatively for a return of the property, or for $450, the value of the same, together with $250 damages sustained by reason of the wrongful taking and deten
The $75 item included in the verdict as damages sustained by respondent being remitted, and the recovery limited to $450, the conceded value of the property, evidence introduced under the rule of damages adopted by the court, and over the objection of appellant’s counsel, requires no attention, for the reason that the same in no manner relates to the question of payment, which is controlling, and appears to be sufficiently established to support the verdict. As respondent is not questioning the authority of the court to make the order imposing upon him the option of accepting a new trial or remitting the entire amount recovered as damages for the wrongful taking and detention of his property, and appellant has nothing of which to complain, it is needless to review the rulings of the court upon objection to testimony offered to establish that element of the relief demanded. Assuming, but not deciding, that appellant was prejudiced by evidence upon the question of damages erroneously admitted, it is very obvious that an inexpensive and expeditious cure was effected when the court eliminated from.
It appears from the evidence that since the commencement of this action, and after appellant had sold the mortgaged property, respondent accepted and received of the surplus arising from the foreclosure proceeding $30.75, and directed the balance of $21 to be applied in satisfaction of a prior mortgage existing upon the property, in favor of a stranger to this suit; and cbunsel for appellant now insist that, by such conduct on the part of respondent, he is estopped from proving the defense of payment alleged in his answer. As between the parties plaintiff and defendant, an unqualified right to the possession of the property at the commencement of the action is essential to a recovery; and as no estoppel was pleaded or relied upon at the trial, and the evidence is insufficient to constitute an estoppel, but was properly admitted in mitigation of damages, under the theory upon which the case was tried, the contention of counsel is not entitled to favorable consideration. The view we have taken disposes of the .case. The judgment appealed from is affirmed.