18 S.D. 55 | S.D. | 1904
At the trial o.f this action to recover $125 as damages for the wrongful conversion of a diamond, stud,.-the jury returned a verdict for $107.50 in favor of plaintiff, and defendant has appealed .from a judgment accordingly entered, and from an order overruling his motion for a new trial. .
. In support of the issues raised by the complaint and,a general denial, respondent testified .on direct examination, and, without any objection, as follows: “I reside at Sioux Falls,. I am roadmaster on the Omaha. . I met Agrant .May 20th, and asked him for some money on a diamond stud. He asked me how much I wanted, and I told him $10 or $12, and he says, ‘I will give you $15.’ I says,‘All right. ’ I left the'stone, and he gave me the money. I don’t know the size. I paid $125. He further said there would be $1.50 interest for 30 days. I had a further talk with him before that 30 days was up, About June 10th I stopped into his place, and asked .him
Appellant was a licensed pawnbroker, and, notwithstanding the foregoing instruments — designed probably to avoid the suggestion of exhorbitant interest — the jury was fully justified in its conclusion from the evidence admitted without objection that the transaction was a bailment of property by a debtor to
The question whether an action at law is maintainable for the wrongful conversion of property pledged when the trans •action is evidenced by a bill of sale was not properly raised at the trial, and therefore required no consideration. “An appellate court will not consider matters for review unless they were brought directly before the court below at the time of the tidal.” Gaines v. White, 2 S. D. 410, 50 N. W. 901; Dowdle v. Cornue, 9 S. D. 126, 68 N. W. 194.
No objection being made to respondent as a witness, nor to his testimony as to what his diamond was worth, the fact that appellant placed the value much lower is not sufficient to justify the conclusion that the verdict returned is not sustained by the evidence, and both motions for the direction of a verdict were properly overruled.
Nor was there any mistake in the rulings of the court on questions of evidence, and the instruction requested was rendered wholly unnecessary by the charge given.
The record discloses no error, and the judgment appealed from is affirmed.