69 Neb. 138 | Neb. | 1903
Lead Opinion
This is an action in replevin brought by • Herman J. Meyer against Adolph Michaels for the possession of a certain stock of goods and trade fixtures. William R. Learn intervened, claiming a portion of the property as against both the other parties. There was a verdict for the intervener for that portion of the property claimed by him, and for the defendant- for the remainder. From a judgment rendered thereon the plaintiff prosecutes error to this court.
To a proper understanding of the questions hereinafter considered, a somewhat extended statement of the facts leading up to this action is necessary. About the first day of May, 1896, the defendant and one Fred H. Meyer, a son of the plaintiff, formed a partnership to engage in the wholesale business of watch-makers’ tools, supplies and materials and other goods, in the city of Omaha, under the firm name of Michaels & Fred H. Meyer. Of their capital $4,482 were borrowed and evidenced by twenty-four notes, each for $186.75, so arranged that one of the series fell due every sixty days. The notes were signed by the members of the firm as principals, and by the plaintiff as surety. On December 5, 1896, the principals on the notes signed
It is conceded that neither the first note payable to the plaintiff nor that made May 21,1897, were due at the commencement of this action. Plaintiff’s right to possession of the property in controversy, under either or both mortgages, is based on a clause therein giving him the right of possession at any time he might deem himself' unsafe or insecure. The court instructed the jury on the theory that there was no evidence that any facts or circumstances arose after the delivery of the second mortgage and before the commencement of this action, which would justify the plaintiff in taking possession of the property. In this state the discretion conferred by such clause may not be exercised arbitrarily. The mortgagee must have reasonable grounds for believing himself unsafe or insecure. Newlean & Hoard v. Olson, 22 Neb. 717; Case Plow Works v. Marr, 33 Neb. 215; Rector-Wilhelmy Co. v. Nissen, 35 Neb. 716. The grounds must be such as did not exist or were not known to the mortgagee at the time of taking the mortgage. Roy v. Goings, 96 Ill. 361; Barrett v. Hart, 42 Ohio St. 41. The instructions of the court in this case perhaps go a little further than the authorities warrant, in that they ignore the fact that certain conditions might have existed at the time the mortgage was given, which, coming to the knowledge of the mortgagee for the first time after taking the mortgage, would justly cause him to feel unsafe and insecure and would entitle him to the possession of the property. The second mortgage was signed May 21, 1897;
There is evidence tending to show that at the time the plaintiff became surety on the notes of the firm, it Avas agreed between him and the principals that they would indemnify him by security on the stock. The plaintiff contends that this agreement was in effect a verbal chattel mortgage and that the plaintiff would be entitled to possession thereunder, if for any reason the written chattel mortgages were invalid. A sufficient ansAver to this contention is that the plaintiff bases his right of recovery on the written instruments. We discover no allegation that he claimed the right to the possession of the property by virtue of any verbal mortgage. Consequently, it was not error for the court to ignore that theory of the case.
Complaint is made that the court in effect directed a finding in favor of the intervener for the goods claimed by him by Adrtue of his levy of the writs of attachment thereon, thus ignoring plaintiff’s theory that there had been an abandonment of such levies. The record of the attachment cases, including the officer’s return, were introduced in evidence. They show a valid levy. The other eAddence in the case on that point is to the effect that the intervener after making the levy appointed a third party custodian of the,property, which consisted of ponderous articles, and they were left in the place of business of the defendants in the attachment case and were used by the firm as before the levy. We do not think these facts sIk>aa[ abandonment
Another ground of complaint urged by the plaintiff-is that the court erred in giving an instruction based on the theory that there was evidence tending to show that the plaintiff had knowledge of the dissolution of the firm of Michaels & Fred H. Meyer, at the time he accepted the second mortgage. A sufficient answer to this complaint is that there is ample evidence to warrant the court in instructing upon that theory. In fact, that he had such knowledge at the time he accepted the second mortgage is practically admitted by the plaintiff in his testimony.
The plaintiff complains of another instruction because it does not cover the hypothesis, that the second mortgage was delivered to Mr. Crane by Pred H. Meyer, who professed to have made it on behalf of the firm for the plaintiff. It is insisted that, if the mortgage was so delivered to Mr. Crane, such delivery was in effect a delivery to the plaintiff on the date thereof, namely, May 21, 1897, although it was not actually delivered to him until June 22, thereafter, and, as it is conceded that the firm was not dissolved until about June 3,1897, the mortgage was the deed of the firm. There is one fact which stands in the way of this theory and that is the plaintiff did not accept the mortgage until after the dissolution of the firm. It is a trite saying, that it takes two to make a bargain. On learning that such mortgage had been made the plaintiff wanted time to think it over before accepting it, and took such time. Until he accepted it, it was not a binding contract. When he finally elected to accept it, the firm was out of existence and the parties constituting it shorn of their power to bind each other. If the mortgage in the first
. Complaint is made of the following instruction which was given by the court at the request of the defendant:
“The jury are instructed that the testimony of plaintiff’s witnesses is to the effect that the mortgage of December 5, 1896, and that of May 21, 1897, were each executed to secure the plaintiff as to the indebtedness to the Omaha National Bank, on which Mr. Meyer was surety, and that Mr. Meyer was aware of this.
“If these mortgages were tendered to plaintiff as security only, he would be bound to accept them as such or not at all. Should you find that these mortgages or either of them were accepted by plaintiff with intent to claim them, or either of them, to evidence absolute indebtedness and to enforce that claim by foreclosure, acceptance with such intent would not be an acceptance of the mortgage as tendered, and without such acceptance the mortgage is invalid.”
The specific objection to this instruction is, that it is not based on the evidence. We have examined the evidence and the record with some care and are satisfied that there is sufficient evidence to warrant the submission of the question involved in the foregoing instruction to the jury.
Another ground of complaint is that the court directed the jury, in effect, that in case they found for the intervener they should find the fair, reasonable, market value of the property claimed by him, and if they found for the defendant also, they should find the fair, reasonable, market value of the remainder of the property in contro>versy. As to the property claimed by the defendant and not seized under the writs of attachment, the instruction as to its value is proper. Baum Iron Co. v. Union Savings
“The true inquiry in such case is what the value of the goods was at the time of the taking in the situation in which they then were, having a view to the. manner in. which the sheriff, if his possession had not been disturbed, would lawfully have disposed of them.”
If the inquiry be confined to such limits, it follows irresistibly that the ultimate fact to be ascertained from such inquiry must be within the same limits. We can not presume that at a sale of goods under such circumstances they would bring their fair, reasonable, market value. It is the experience of all who have any connection with the forced sales of property, that the full market value .thereof is rarely obtained. The officer must sell at a particular time and without the advantages possessed by the merchant to advertise and display his goods and to sell or not, as he thinks the price offered fair and reasonable or disproportionate to their value. These are matters which we think should have been called to the attention of the jury, and which it should have been directed to take into consideration in arriving at the damages sustained by the intervener, by being dispossessed of the goods. It follows, therefore, that the instruction complained of, so far as it relates to the property claimed by the intervener, -was erroneous.
Complaint is also made of the following instruction given by the court on its own motion:
“In passing upon the value of the goods attached or replevied you are not conclusively bound by the opinions of witnesses in relation thereto and may reject the same if for good reason you see fit so to do. You are the judges of the value of said property, but you should take into consideration the opinions of the witnesses in connection with all the other evidence in the case and it should be viewed by you in the light of your experience and you should say from all the credible evidence what, in your business judg*146 ment, was the fair and reasonable market value of said goods and chattels.”
We do not think that this instruction is subject to the criticism made, that it authorizes the jury, if they see fit, to entirely disregard the opinion given by the witnesses relating to' the value of the goods. On the contrary, it directs them to take into consideration the opinion of the witnesses in connection with all the other evidence in the case, but to view it in the light of their own experience. The rule is well established that triers of fact are not generally bound by evidence of value, even when it is not met by opposing proof. Lincoln Land Co. v. Phelps County, 59 Neb. 249. The instruction we think fairly reflects the law as announced in Head v. Hargrave, 15 Otto (U. S.) 45, and ■other cases relating to directions given to the jury in cases of this character.'
There is evidence to the effect that the defendant was present at the sale made by the plaintiff under the foreclosure of the chattel mortgage, made no objection to the sale, and bid on some of the property offered for sale. Covering that branch of the. testimony the plaintiff tendered the following.instruction:
“The jury are further instructed that if they find from the evidence that Adolph Michaels, the defendant in this case, was present at the sale of the mortgaged property, upon advertisement for foreclosure under the mortgage dated the 21st day of May, 1897, and bid upon said property, and made no objection to the said sale, then you may take all such circumstances in consideration in weighing your evidence in this case. And if you believe from the evidence that the said Michaels, by his bid at said sale and by his other acts in connection therewith, ratified the validity of said mortgage, then you are warranted in finding that he is estopped from questioning its validity in this action, and you would be warranted in finding that the said mortgage is valid and binding as between the said Michaels and Fred H. Meyer, and the said Michaels, on the one part, and Herman J. Meyer, on the other part,”
Complaint is made of the refusal of the court to give the third, seventh and eleventh instructions asked by the plaintiff. The plaintiff sought by these instructions to submit, among other things, the validity of the lien claimed by the intervener. As stated in a former part of this opinion, the validity of such lien was conclusively established. The instructions were properly refused. Error is assigned on the refusal of the court to give certain other instructions asked by the plaintiff. They are voluminous and we are unable to discover any error in their refusal.
On the trial of the case the plaintiff offered to prove that a portion of the goods, taken under the Avrit in this case, had been subsequently levied upon under executions issued on judgments against Michaels & Fred H. Meyer, and that the officer making the levy took such property from the possession of the plaintiff who still retained possession thereof under such executions. The offer was refused and its refusal is now assigned as error. We think the weight of authority is to the effect, that in an action of trover the. defendant may show in mitigation of damages that the. goods had been appropriated under legal process issued against the plaintiff. Irish v. Cloyes, 8 Vt. 30, 30 Am. Dec. 446; Pierce v. Benjamin, 14 Pick. (Mass.) 356, 25 Am. Dec. 396; Curtis v. Ward, 20 Conn. 204; Stewart v. Martin, 16 Vt. 397; Dodson v. Cooper, 37 Kan. 346; Watson v. Coburn, 35 Neb. 492.
These cases establish the rule that when goods have been converted and the owner afterwards receives hack the whole or a portion thereof or the proceeds arising from their sale, while he does not thereby bar his right of action for the original wrongful taking, such fact may nevertheless be shown in mitigation of damages. And it is urged in argument in this case that, if the goods taken by the plaintiff under his writ of replevin were afterwards levied
No argument is needed to establish the injustice that would arise from such a proceeding, but it is not apparent that such a result would or could arise in this case from the failure of the court to receive the proof offered. The creditor who levied the executions upon this property was in privity with the defendant. He could obtain no title or right of possession under his executions, except such title and right of possession as the defendant then' had, and it is clear that a defendant in replevin can not regain possession of the property taken from him, by causing another writ to be levied thereon while the replevin action is pending. In Shull v. Barton, 56 Neb. 716, 727, it is said:
“There is no conflict of authority upon the proposition that when property has been attached and then replevied, the plaintiff in the attachment, while the replevin suit is pending, can not levy an execution or attachment thereon. Indeed, some authorities go so far as to say that property attached and then replevied is in the custody of the law, and while the replevin action is pending can not be seized on attachment or execution at the suit of any person. Bates County Nat. Bank v. Owen, 79 Mo. 429. But every court to which the question has been presented, we think, has denied the right of a plaintiff who has attached property after it has been replevied from him and while the replevin action was pending, to levy another attachment or execution upon it.”
Complaint is made of the ruling of the court in the admission of evidence, on behalf of the defendant, of certain transactions of third parties with Fred H. Meyer, wherein he obtained certain goods from such third parties, and of his conversation in regard thereto. Neither the transactions nor the conversations were brought home to the plaintiff. The evidence was not offered for the purpose of impeachment. It was irrelevant and served no' legitimate purpose in the case. It tended to mislead and create prejudice, and should have been excluded. The admission of certain other testimony is complained of by the plaintiff but the complaint is unfounded. While other errors are assigned, most of them would involve a discussion of questions already considered, and none are so serious as to call for a reversal of the case.
For the error of the court in failing to fully instruct upon the value to be fixed upon the interest of the intervener in the goods claimed by him, the case should be reversed and remanded for another trial between the plaintiff and intervener, and the judgment in favor of the defendant in error against plaintiff in error should be affirmed and we so recommend.
By the Court: We are satisfied Avith the conclusion of the commissioner in regard to the judgment in favor of the defendant Michaels; but the reason given for reversing the judgment in favor of the defendant Learn is not satisfactory. It is true that the jury, in determining the value of the property replevied from the constable, should consider the. manner in Avhich the officer, if his possession had not been disturbed, would lawfully have disposed of the property, and should also have considered all other circumstances surrounding the transaction as disclosed by the evidence. It is proper in such cases that the court, in its instructions, should call the attention of the jury to their duty in that regard; but, since the fair, reasonable value of the property is the true measure of damages, and the circumstances referred to are to be considered for the purpose of determining what, in the particular case, was the fair, reasonable value of the property, we do not think that the instruction complained of .can be said to be erroneous. If a more explicit and comprehensive instruction in regard to the method of arriving at the real value of the property at the time was desired by plaintiff, he should have presented such instruction to the court and can not now predicate error upon the failure of the court to so more explicity instruct.
The case of Merchants Nat. Bank v. McDonald, 63 Neb. 364, is to be distinguished.. It was tried to the court with
The judgment of the'district court is
Affirmed.
Rehearing
The following opinion on rehearing was filed December 16, 1903. Judgment of affirmance adhered to. Remittitur ordered:
A resubmission and reconsideration of this cause upon oral arguments on the motion for a rehearing is productive of no different result or change of views from those heretofore expressed (Meyer v. Michaels, ante, p. 138), except with relation to the question of the alleged excessive verdict returned by the jury. Further examinatiou of the record and consideration of this question convinces the court that the verdict is excessive and can not be upheld under the evidence as preserved by bill of exceptions. The value of the stock originally purchased, including fixtures, may fairly be said to be worth the sum paid; to wit, $5,482. New stock was purchased during the continuation of the business approximately of the value of $10,000, total $15,482. From this total stock, goods were sold in the ordinary course of trade for which were received, approximately, $15,000. In these receipts was included a profit of 30 per cent, thus making the cost of the goods sold amount to $11,538.46. Taking the value of the goods thus
Affirmed.