26 A.D. 95 | N.Y. App. Div. | 1898
The plaintiff deposited with the defendant for safe-keeping a trunk which contained silverware and other articles of value, for the storage and insurance of which the plaintiff was to pay a premium or charge, the amount of which was fixed at thirty-six dollars per year. The defendant issued to her a receipt acknowledging the receipt of the trunk, contents unknown, left with it for safe-keeping, and to be redelivered on surrender of the receipt. By that receipt the defendant also agreed- to insure the plaintiff, her executors, administrators or assigns, to the amount of $3,000 against loss of, or damage to, the said package and contents by fire or burglary, and this receipt contained the following provision : “ This receipt must
On behalf of the defendant there was evidence given tending' to show that McKinley delivered this trunk ten days after its receipt to the plaintiff’s then husband, without requiring the delivery of the receipt, or making any inquiry about it, except that it was delivered to the person who was supposed to be the then husband of the plaintiff. The trial judge charged the jury that if they found as a matter of fact that the trunk and contents belonged to Mr. Wetmore, the person to whom they were delivered, the delivery thereof to him eon
We think, also, that it was not error for the court to charge that the act of the defendant in delivering this property was a conversion by Ihe defendant, and that the plaintiff was entitled to recover the value of the property as of the' date of the. conversion, May 1,1889. The answer of the defendant admits the deposit of the goods by the plaintiff with the defendant, to be redelivered to the plaintiff on surrender of the receipt given therefor; and that thereafter, and before the commencement of the action, the plaintiff, at the warehouse of' the defendant, duly demanded of the- defendant the redelivery to her of the said'trunk and its contents, and thereupon produced and offered-to surrender the said original receipt, which -was then in her possession, and offered to pay to the defendant its premium or charges for the storage and keep of the said trunk and its contents, and that defendant neglected and refused to deliver the said trunk or any of its contents to the said. plaintiff; and the plaintiff’s testimony fixed the date of that demand, which was not disputed, as the first week in May, 1889.
Assuming that the action was on contract and not for a conversion, the court charged that if the jury found for the plaintiff they might assess the damages, and that the court would add interest thereto from the time of the conversion, as agreed to by counsel. There was no exception to this charge, -nor was there any request by the defendant to submit the question of interest to the j ury, the only request- being that the interest should run only from the time of the commencement of the action in case there was no demand upon the defendant for the property; but the answer admits the demand long before the commencement of the action, and that date was fixed by the plaintiff as of the first week in May. The mere statement by the court to the jury, that there was a conversion of the property as of a certain date, was not error; no recovery was
Nor do we think that the court erred in refusing to charge that 'the plaintiff coidd only recover the lowest estimate of the value of the articles as testified to by the expert witness called for the plaintiff. The difficulty in the way of the plaintiff’s proving the value of these articles was great, but that difficulty was caused by the act of the defendant in delivering the articles to a person other than the bailor, and in violation of the express terms of the contract between the ¡ilaintiff and defendant, which provided that the goods were to be delivered only upon the production of the' receipt. The difficulty of proving the value thus being caused by the wrong act of the defendant, it was not to be relieved from liability because of such, difficulty. What the plaintiff was entitled to recover was the fair market value of her property, and that fair value was for the jury to determine from all of the evidence. The claim of the defendant, that several of the artir •dies belonged to the husband and wife jointly, was based upon the use by Mrs. Wetmore of the word “.us” in describing the circumstances under which they were given. I think that there is a presumption that the contents of this trunk belonged to the plaintiff. They were in her ]3ossession; delivered by her to the defendant. The defendant, the bailee, justifies the delivery of the goods to a third person upon the ground that these articles were owned by such third person. The burden of proof was upon the defendant to show that fact; and at least it was a question for the jury to say whether the
It seems to me, however, that the verdict was larger than the record justified. The court charged that the plaintiff could not recover more than the value claimed in the bill of particulars. The value claimed in the bill of particulars was $2,905. In that was included a gold service valued at $1,500. Deducting the $1,500 allowed for it in the bill of particulars, the Value of the. remaining property, as stated in the bill, of particulars, is $1,405, and adding to that sum the value of the gold service as fixed by the testimony at $285,. made the total amount that the plaintiff ■ was entitled to recover $1,694 instead of $2,000, the verdict found by the jury.
We think, therefore, that the judgment should be reversed and a new trial ordered, unless the plaintiff stipulates to reduce the judgment to the sum of $1,694 and interest thereon from May 1, 1889. Upon the plaintiff’s making this stipulation, the judgment as modified thereby is affirmed, without, costs of this appeal.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment reversed, new trial ordered, with costs to appellant to 'abide event, unless plaintiff stipulates to reduce judgment to $1,694 and interest thereon from May J, 1889, in which case judgment as so modified affirmed, without costs of appeal.