4 Minn. 148 | Minn. | 1860
By the Court. The various points made in the assignment of errors may be reduced to the following:
1. That the court erred in refusing to admitin evidence, the assignment to Fonck for the purpose of disproving the Plaintiffs’ title. 2. That the assignment to the Plaintiff below is void upon its face. 3. That the damages are excessive, being given under the influence of prejudice and passion. 4. That the court erred in refusing to charge as requested, and in refusing a new trial.
The Plaintiffs in error have directed twelve of the sixteen points made, to the first of the above propositions, evidently placing more confidence in this than either of the others. We think however that the court below sufficiently answered every objection arising from this source when he placed his refusal to admit the assignment to Fonck upon the unanswerable ground, that it was not put in issue by the parties. A glance at the pleadings will make it apparent that notwithstanding the general form of the denial in the first paragraph of the answer, the real issue afterwards tendered by the Defendants, is that of fraud in the assignment to the Plaintiff. The Plaintiff having set out his title specially, the Defendants did not deny the fact of the assignment through which he claimed, but attempted to avoid it, by alleging that it was fraudulent as against creditors; that the property was still the property of Luhrsen, and that they had a right to take it, and did take it on the process in their hands against Luhrsen’s property. These allegations materially qualified the general denial first made, and in effect reduced the issues to the simple question of fraud; for the ownership and possession alleged and denied are included in or depend upon this question alone.
The Defendants having thus alleged property in a third person, naming him, and shown their right to take the property of
We hold therefore that the court was right in preventing the Defendants from thus misleading the Plaintiff by alleging property in Luhrsen, and, on the trial, proving it to be in Eonck. Indeed, the most serious doubt we have had, as to the. rulings of the Judge, was as to the propriety of his admitting the assignment to Eonck to be read in evidence for any purpose. He allowed it to go to the jury for the purpose of showing the nature of the transaction between Luhrsen and the Plaintiff; thus putting the Plaintiff to the necessity of producing evidence to show that the alleged assignment to Fonck had never in fact been consummated, and probably giving to the defence, so far as the jury was concerned, all the benefit that could have been derived from this assignment, had it been admitted expressly for the purpose of disproving the Plaintiff’s title. The charge of the Judge, that “ the assignment to Eonck was prima facie evidence that he accepted the trust ” leads to the belief that the question of the consummation or completion of this assignment, was submitted to and passed upon by the jury in their deliberation, notwithstanding the reiterated declaration that it was not put in issue by the pleadings. It might well be asked how this assignment could affect the transaction between Luhrsen and the Plaintiff, unless the j ury should first pass upon the question of its consummation; a question fairly raised by the testimony which was admitted.
Another error assigned is that the assignment through which the Plaintiff claims title is void upon its face, because of the following clause :
“ In trust however and to the intent and purpose that he, the said Charles Bergfeld, shall and do, as soon-as convenient, sell and dispose of all the lands, goods and chatties,” etc.
It is contended that this clause gives to the assignee unlimited discretion as to the time in which he will execute the
"Were this the proper interpretation to be given to this language, we could not hesitate to declare the assignment void, but we cannot give this meaning to the language used. The term “ convenient ” is not unusual in instruments of this character. It ordinarily signifies, fit, suitable, proper, without difficulty, and in this sense it is used in this assignment; as directing the assignee to sell and dispose of the property in such time as it is fit, suitable or proper for him to dc under all the circumstances, or as soon as it can be done without difficulty. In other words as soon as he reasonably can do so. This gives to him no discretion not warranted by the surrounding circumstances ; and as he would have a discretion to that extent had the instrument been entirely silent on the subject, there can be no harm in giving to the assignee, in express terms, all that the law gives by necessary implication.
As to the question of excessive damages, we may remark that there is no sufficient denial of the allegations of the complaint as to the value of the property converted, or of the property returned, unless it be in the general denial found in the first sentence of the answer. If, however, we are confined to this denial, it proves altogether too general; for as the complaint alleges the values of the goods at specified sums, the general denial of these allegations is at best but a denial that they were of the value of the particular sums named.
But aside from this there was testimony which, taken with the admissions of the answer that certain of the property sold at Sheriff’s sale for sufficient to satisfy a judgment of $223.65 and costs of sale, fully justifies the verdict.
Luhrsen valued the goods, estimating them at their marked prices, at $2251.75, and if we deduct those returned, at the marked prices, we have a balance of over $900, as the value of the goods which were converted, and this balance we find the jury reduced nearly thirty-three per cent.
Again: Yan Hamm estimated the value of the goods which were returned, at $219.18, and says that if they had been in good order they would have been worth “threetimes more,” which would make $876.72. Deducting from this last
The last objection urged by the Plaintiffs in error is that the Judge erred in refusing to instruct the jury as requested.
As to the specific charges asked for, relating to the assignment to Eonck, they are necessarily involved in the first point we have considered. And with regard to those concerning the assignment to the Plaintiff, we have been unable to detect any error. Without taking into consideration the fact that the Defendants below did not allege or show that they were either of them creditors of Luhrsen at the time of his assignment to the Plaintiff and for that reason might have little cause to complain of this disposition of his property, we think that every material issue made by the pleadings was fully and fairly submitted to the jury by the charge of the court. That the charge concerning the assignment to the Plaintiff was highly favorable to the Defendants, and that the Judge could not have gone further than he did without, in effect, taking the question of fraud from the consideration of the jury and deciding it himself. •
The hardships of which the Defendants complain, could easily have been avoided by an amendment of their answer, but they chose the rather to trust their case without availing themselves of a privilege which would have enabled them to get in the evidence which was excluded.
Judgment affirmed.
