236 Mass. 346 | Mass. | 1920
This is an action of tort for the conversion of five
The case is before us on exceptions taken by the plaintiff and by the defendant to the admission and exclusion of testimony, and to certain rulings and refusals to rule by the trial judge. The evidence was conflicting as to the ownership of the property attached; that offered by the defendant, if believed, would have warranted the jury in finding that it belonged to Pokolski; but they were not bound to believe that testimony. Lindenbaum v. New York, New Haven, & Hartford Railroad, 197 Mass. 314. Cohen v. Longarini, 207 Mass. 556, 558.
The defendant offered to show that, before the attachments were made, Pokolski had made statements to the effect that he was the owner of the onions, that he had attempted to sell some of them, and that he kept them in the place where they were stored in his brother’s name because he was afraid they would be attached by a creditor. These, and other statements alleged to have been made by him, were not claimed to have been made in the presence of the plaintiff, and were rightly excluded; Pokolski was not a party to the action, his declarations were those of a third person, and the plaintiff was not bound by them. O’Brine v. McNulty, 122 Mass. 474. Oberlander v. Carstens, 151 Mass. 18. Rice v. James, 193 Mass. 458, 463.
The testimony of the defendant, called to testify by the plaintiff, that as deputy sheriff he sold the onions, was properly admitted; the exception thereto is overruled.
His testimony that a demand was made by the plaintiff’s attorney upon him for the onions shortly before the sale, although admissible in the discretion of the judge, was immaterial, as no demand was necessary.
There was evidence of the market value of the onions on the dates on which they were attached; and it appeared that between that time and March 5, 1919, when they were sold at auction,
When attached, the property was stored upon the premises of one Barowski. He was allowed to testify, subject to the defendant’s exception, that the plaintiff had made arrangements with him for such storage. The contention of the defendant is that the onions were stored in a warehouse maintained by Barowski, and that, as warehouseman, his books were the best evidence as to who made arrangements for the storage. This evidence was admissible independently of the entries in Barowski’s books, if he kept any, which did not appear. Accordingly the exception cannot be sustained. As none of the exceptions taken by the defendant disclose any error, they must be overruled.
The single question raised by the plaintiff’s exceptions rtelates to damages only. He requested a ruling that the measure of damages was the fair market value of the onions on March 5, 1919; the court refused to so rule and instructed the jury that the measure of damages was the fair market value of the onions at the time they, were attached by the defendant on February 27 and 28, 1919, with interest thereon from those dates; that in determining such value they should take into consideration the condition of the market between February 27 and March 5 inclusive, and the price for which the onions were sold on the last named date. The instructions given were correct. The rule is well settled that the measure of damages in an action for conversion is the market value of the property at the time of the conversion, and interest from that time. Kennedy v. Whitwell, 4 Pick. 466. Parks v. Boston, 15 Pick. 198. Johnson v. Sumner, 1 Met. 172, 179. Clapp v. Thomas, 7 Allen, 188. East Tennessee Land Co. v. Leeson, 183 Mass. 37, 41. Pierce v. O’Brien, 189 Mass. 58. Bailey v. Agawam National Bank, 190 Mass. 20.
The plaintiff contends that,, although the property had been attached by the defendant and was in his hands, his refusal to
Whatever may be the rule in some jurisdictions, it is well settled in this Commonwealth that although the market value of property attached fluctuated and increased in value between the dates of its attachment and sale, that does not entitle the plaintiff to recover the increased price in a case of this kind, but that the market value at the date of the attachment, with interest, is the measure of damages. Kennedy v. Whitwell, supra. Pierce v. Benjamin, supra. Stone v. Codman, 15 Pick. 297. East Tennessee Land Co. v. Leeson, supra. Bailey v. Agawam National Bank, supra.
The cases cited by the plaintiff do not sustain his contention, but are distinguishable in their facts, or in the remedy sought to be enforced. See Henshaw v. Bank of Bellows Falls, 10 Gray, 568; Fisher v. Brown, 104 Mass. 259; Fowle v. Ward, 113 Mass. 548; Hayward v. Leeson, 176 Mass. 310.
It results that both the plaintiff’s and the defendant’s exceptions must be overruled.
So ordered.