93 P. 1044 | Cal. Ct. App. | 1907
The appeal is from an order granting defendant's motion for a new trial.
The action was brought to recover damages for the conversion of six horses and some other personal property.
The court found that "plaintiff has been damaged by such unlawful conversion in the following specific amounts, namely: the sum of $252.60 cash taken from plaintiff; the sum of $160, the value of the aforesaid six horses; the sum of $17, the amount of time and money spent by plaintiff in the pursuit of the aforesaid property; the sum of $140, on account of the loss of use of the aforesaid six horses from the time of their conversion, and the sum of $22.60, which is the interest on the value of the aforesaid money and horses from the time of their conversion by defendant at the rate of seven per cent per annum, which makes the total amount of plaintiff's damages sustained in the premises the sum of $592.20."
It is obvious that this finding is erroneous, at least as to the $140 for the use of the horses.
The rule as to damages for the conversion of personal property is prescribed in section
The interest on the value of the property is the allowance provided by the statute in lieu of the value of the use of the property and not in addition thereto.
The question has been more or less considered in the following cases: Douglass v. Kraft,
Appellant claims that interest was allowed under said section
The language employed by the legislature precludes such construction and the cases cited are not in point.
Said section
As we have seen, for the case at bar there is an express provision in said section
The Stevenson case, supra, was not in conversion, but was for the recovery of the possession of a mare and damages for her detention. It was properly held by the court that special damages must be pleaded.
The question involved in the Fairbanks case, supra, was as to the expense incurred in the pursuit of the property.
In the Livestock etc. case, the action was for the recovery of the possession of the property with damages for its detention or its value in case delivery could not be had. What is said by the court as to damages for the detention of the property must be considered in view of the nature of the action.
Again, one of the grounds upon which the motion for a new trial was based is "Newly discovered evidence material *135 for the defendant which he could not, with reasonable diligence, have discovered and produced at the trial." Certain affidavits were introduced containing important statements bearing upon the issue as to the ownership of the property. Much must be conceded to the discretion of the trial court in the determination of the sufficiency of the newly discovered evidence to justify a new trial. This is true whether said evidence be cumulative or otherwise.
Admitting that it is cumulative, if the court had denied the motion on that ground it would be a sufficient reason for affirmance; but the contrary is not true that the order granting the motion should be reversed because the additional evidence is merely cumulative; because, as said inOberlander v. Fixen Co.,
So here the newly discovered evidence is such that if the motion for a new trial had been either granted or denied on that ground it could not be said that the trial court was not justified in its action.
It does not appear upon what specific ground the motion was granted, as the order is in the following form: "And the court being fully advised, thereupon grants said motion for a new trial to the defendant, Charles McGhan."
There can be no question, therefore, that if justified on any ground contained in the motion the order must be upheld.
The order granting the motion for a new trial is affirmed.
Hart, J., and Chipman, P. J., concurred. *136