122 A. 400 | Conn. | 1923
The record discloses evidence upon which the jury could reasonably have found the verdict they rendered. The testimony of some of the witnesses relating to most material matters was flatly contradicted by the testimony of other witnesses. This was a case, as the trial court told the jury, in which the principal witnesses on one side or the other had testified falsely, and it was the duty of the jury to decide who had done so and which testimony they would believe, and it was for them only to estimate its weight. The conclusion they reached was not inconsistent with the law stated to them by the court. If they believed and gave full value to the testimony produced by the plaintiff, and followed the instructions they *586 received, they could not rationally have reached any other verdict. There was no error in denying the defendants' motion to set the verdict aside.
The defendants claim that the trial court erred in admitting certain evidence offered by the plaintiff to prove the value of the lions at the time of the attachment. She produced the original execution of the judgment rendered in the action in which they were seized by the deputy sheriff in May, 1921, and his return thereon showing that in February, 1922, he had sold the lions to the highest bidder at auction and had obtained $900 for them. The defendants objected to this evidence because the date of the sale was so remote from the date of the attachment, that the sum obtained at the sale was not admissible evidence of the value of the lions at the time they were taken by the deputy sheriff; and because it did not appear that the lions were in the same condition at the time of the sale as at the time of the attachment. Whether this evidence was so remote in point of time as to be irrelevant was a matter within the discretion of the trial judge; it was within his power either to receive or exclude it, as he might think would best promote justice in view of all the circumstances known to him. Error in its admission, therefore, is not well assigned upon that objection. Barry v. McCollom,
To a hypothetical question put to an expert witness upon the value of lions, the defendants objected "on the ground that the witness' answer must necessarily *587 be based on certain assumptions of fact outside of the question." What those "assumptions of fact" are was not stated, and the record does not disclose that there were any on which the witness' answer "must necessarily be based." We find no error in the rulings on evidence.
If the defendants have been aggrieved by errors which they claim to have occurred in the trial of this action, their grievance must appear in the assigned reasons of appeal which they base upon specified parts of the trial court's charge to the jury. The plaintiff claimed to have proved that she bought the five lions which made up the performing troupe from Adgie Castillo in Texas in January, 1918, and first brought them into this State in April, 1921, and that she left them in the control of Adgie Castillo to be exhibited for the consideration of $10 a month, which she had received; and she admitted that she did not take actual possession of them before May 6th, 1921, the day on which the defendants claimed to have proved that they were attached by the deputy sheriff as the property of Adgie Castillo. Respecting the deductions legally to be drawn from these facts, the trial court instructed the jury that if the sale of the lions was made in Texas, the transaction and its consequences must be tested by the law of Texas, which it informed them is that "where there has been no change of possession and the seller retains the property in his possession, it is prima facie proof that the sale is fraudulent as against his creditors, and puts the burden of proof upon the purchaser of explaining the circumstances." This is unquestionably a sufficient statement of the law of Texas applicable to the facts.Mills v. Walton,
The trial court charged the jury that if it should decided that there had been a sale of the lions to the plaintiff in Texas and that they were actually in the possession of the plaintiff when the deputy sheriff attached them, their verdict should be in favor of the plaintiff. The defendants criticize this statement because it does not contain an explicit statement that the jury should also find that the plaintiff at the time of the attachment had a lawful right to the possession of the lions. This criticism ignores the context and manifest purpose of this part of the charge. The court had just directed the jury to determine whether, before the attachment, there had been such a transfer of possession to the plaintiff as would satisfy the requirements of the law already explained to them; that is, that such transfer must be open, notorious, unequivocal, and to the exclusion of the vendor, having regard to the relations of the parties. Evidently actual possession of that kind would include the right of possession. For a general property in a personal chattel draws to it possession in law, and a person who has the general property in a personal chattel, although he never had the possession in fact, may maintain trover for the taking of it by a stranger.Bulkley v. Dolbeare, 7 Conn. *232, *235. The defendants had made no claim that there was any relation of the parties by virtue of which Adgie Castillo had acquired a right of possession of any kind, for they made a broad denial of a sale and transfer of possession from her to the plaintiff, and of any contract which interrupted her exclusive ownership. There was no evidence to be submitted to the jury to show *590
that the plaintiff, if she had once secured the possession of these animals, had restricted or impaired her right of possession, or that by lease or bailment or in any way Adgie Castillo had acquired an interest or term coupled with a right of possession. Forbes v. Marsh,
It was admitted that a formal bill of sale of the lions was drawn up and signed by Adgie Castillo on May 7th, 1921, but dated January 10th, 1918, and that it was recorded in the town clerk's office on May 9th, 1921. The plaintiff presented this paper as evidence tending to show that such a sale was made on January 10th, 1918. Referring to it, the court instructed the jury that so far as the issues in this case were concerned, this bill of sale had no effect upon the rights of the parties unless possession of the property was taken under it by the plaintiff; that the date of the bill of sale was of no importance unless the plaintiff took the lions into her possession before they were attached by the deputy sheriff. It is difficult to see how the defendants can reasonably complain of these instructions. *591
The plaintiff alleged and claimed to have proved that the attachment by the deputy sheriff was made on May 11th, 1921. The defendants claimed to have proved that on May 6th, 1921, the deputy sheriff went to the place in Fairfield County where Adgie Castillo was exhibiting the lions, announced to her and to all persons within hearing distance that he was attaching the lions, and pasted a notice on the doors through the backs of the cages stating that he, as deputy sheriff of New Haven County, duly deputized to act in Fairfield County, attached the within lions in a suit against Adgie Castillo; that it was possible but difficult to remove the lions from the place where they then were, and he left them there; that he returned each day and spent some time around the cages; that on May 7th, 1921, he found that the notices had been torn off from the cages and destroyed, and the lions out of their cages; and that to May 11th, 1921, he placed a keeper in possession of the lions, and kept him continuously in charge of them until May 14th, when he removed them to East Haven, in New Haven County, where he held them until he sold them on execution in February, 1922. The defendant deputy sheriff testified that from May 6th to May 14th he left the lions in the place where he found them because he expected some one would pay the bill against Adgie Castillo and settle the suit. It appeared that during this time Adgie Castillo continued to exhibit the lions in the usual manner. The original writ on which the attachment was made was put in evidence. It bore the endorsement of the sheriff of Fairfield County, attesting that on May 11th, 1921, he deputized "Joseph Binkoski, a deputy sheriff for New Haven County, attesting that on May 11th, 1921, he deputized "Joseph Binkoski, a deputy sheriff for New Haven County, to serve the within writ, summons and complaint." And in his return upon this writ deputy sheriff Binkoski asserted that on that day, May 11th, 1921, in Bridgeport, he *592
attached three lions as the property of Adgie Castillo and took them into his possession. It was conceded that that attachment is the one set up in the complaint in this action. With this evidence before them, the court instructed the jury that the posting of the notices on the lions' cages on May 6th did not constitute an attachment; and that "in order to make a valid attachment the sheriff must take the property attached into his possession, either actually or constructively by placing a keeper in charge, or by some other act which unequivocally placed the property in his possession"; and that "the attachment took effect from the time when the sheriff took these lions into his possession; and the placing of them in the custody of a keeper constituted such taking of them into his possession." The appellant contends that this is not a correct statement of the law applicable to the facts of the situation because it was difficult to remove the lions. But manifestly that difficulty was not serious, for it was admitted it did not prevent or so far as appears hinder, their removal when the sheriff was ready to remove them. The defendants also argue that the attachment was begun by the posting of the notices on the cages on May 6th, and perfected by the placing of a keeper in charge of the lions on May 11th, and therefore it should be regarded as effective from May 6th; or, in their own words, that the deputy sheriff on May 6th, "was so far in possession of the lions that the plaintiff could not take possession." But by the mere act of posting the notice on the cages, with the announcement to Adgie Castillo and the bystanders that he was attaching the lions, he did not take possession or accomplish anything. The notices were torn off and destroyed the next day, and the lions were out of the cages and were exhibited thereafter as usual by the person whom the defendants *593
asserted to be their owner. After May 6th, the sheriff did not attempt to maintain actual or constructive possession of the animals until he placed a keeper in charge on May 11th. Until that day he did not exercise due vigilance to prevent the property from going out of his control. Mills v. Camp, 14 Conn. *219, *226. If he had really meant to take possession on May 6th, he evidently abandoned possession on May 7th, when he suffered the lions to go back into the custody of Adgie Castillo. "It is of the very essence of a lien by attachment, that possession be taken and held; and when this is relinquished, there is a termination of the lien, and the general owner is remitted to his property unencumbered. . . . The plaintiff [the attaching officer], then, having abandoned the possession of the goods attached, the lien upon them was gone, and they were out of the custody of the law, when taken and carried away by the defendant." Taintor v. Williams,
The plaintiff claimed damages for the conversion of the lions and special damages for breaking up her troupe of five performing lions. The defendants did not in their pleadings challenge her right to recover either kind of damages. On the trial it was admitted that the defendant sheriff finally seized and took away three of the five lions, and the plaintiff presented evidence tending to show that thereby the troupe was broken up and thereafter she derived no profit from it or from the two lions left in her possession. The *594
court directed attention to the plaintiff's claims to damages, and to the evidence as to the value of lions trained to act together in a troupe, and to the costs of these five animals and what three were sold for on execution; and thereupon directed the jury to determine the actual value of the three attached on the day of the attachment. These instructions conform to the rule of damages approved by this court in cases of conversion. Seymour v. Ives,
In the seventeenth assignment of error the defendants set out merely the following sentence of the charge: "If, because of recognition of this rule, Mr. Seeley was deterred from going upon the stand as a witness and giving his version, you are not bound to take the statements as to what he said and did as true because they are not contradicted by him, but are entitled to consider his failure to contradict them as explained by his very proper adherence to the rule of professional conduct." This statement of the assignment is not distinct and complete, and does not indicate with definiteness the mistake claimed. Hence it does not merit the attention of this court. General Statutes, § 5837; *595 Water Commissioners v. Robbins,
The eighteenth and nineteenth assignments of error cover the whole charge in a general attack. It is described as incorrect in perspective and inadequate, and in the brief condemned as "unfortunate in analysis and statement," because it over-emphasized the matter of transfer of title and under-emphasized the interest of the public in the transfer of personal property. We discover in the record no support nor ground for such an attack.
We have examined in succession the assignments of error which are directed against specified parts of the charge, and have found them insufficient. These and other parts of the charge contain correct and adequate explanations of the law relating to all material questions of fact and issues, and fair and ample statements of the claims actually made by each party during the trial. The decisive question was whether the jury would accept and follow to a conclusion the evidence produced by the plaintiff or that produced by the defendants. Their decision of this question depended upon their opinion of the veracity of the principal witnesses. Having settled that question, the instructions of the court unquestionably guided them to a correct result. Therefore we need not inquire whether the theory on which the charge proceeded could in all respects be maintained. Wilson v. Griswold,
There is no error.
In this opinion the other judges concurred.