Selkirk v. Cobb

79 Mass. 313 | Mass. | 1859

Merrick, J.

1. It appears that in the progress of the trial two mortgages of personal property, made by Race to the plaintiff, were produced and read in evidence, without objection. But when, at a later stage, other similar mortgages were produced and offered to be laid as proof before the jury, they were objected to as irrelevant, and were excluded by the court. Afterwards, while the defendant’s counsel was making his concluding argument and commenting upon the testimony, the court, upon an objection then interposed by the plaintiff, ordered the mortgages and all the testimony connected therewith to be stricken out of the case.

To this, exception was taken by the defendant; but the exception ought not to be sustained. There was doubtless some irregularity in the proceeding. The attention of the court ought properly to have been called directly to this matter at an earlier stage in the trial. The omission to do so may have been the result of misapprehension as to the extent of the ruling and direction given when the mortgages subsequently offered were objected to and excluded. But whatever was the cause of delay in reference to the objection to the admissibility of the two first mentioned mortgages, there is no reason why they should have been allowed to have an influence upon the final determination of the questions at issue between the parties, since they were manifestly incompetent for that purpose. This is now conceded by the defendant. He does not complain that he was deprived of the advantage of any legal and admissible evidence; but only that certain facts, which had been laid by him before the jury without objection, and which had no competency whatever as proof in the case, were withdrawn by order of the court from their attention. If the objection had been that, in consequence of the reception of the mortgages in evidence without objection, the course of the trial had been in any degree varied, on the part of the defendant, so that a formal withdrawal of them at a subsequent stage would have operated as a disadvantage to him, he might have had a just ground of complaint. But nothing of this kind appears. His alleged grievance is, that he was not permitted to avail himself of the proof concerning these mortgages; that is, that he was not allowed to influence the jury and procure a verdict by means of evidence not admissible, or allowable by law. It would be alike unreasonable and unjust, that such a complaint should be sustained. There should undoubtedly be care and vigilance to prevent such irregularity as that which occurred on the trial; but if it be found that by some inadvertence it had happened, it would be the duty of the court to correct it as soon as possible, and then explain the whole matter to the jury in such way as to make it sure that the rights of neither party should be affected by it. As it is not pretended that there was any want of proper and suitable explanations upon this subject, it may be presumed that all proper and necessary advice and instructions were given to the j ury to prevent any possible injury to either party by the course which was pursued.

2. The refusal of the presiding judge to adopt and give to the jury the instructions suggested by the defendant must be considered, in view of the rule which was in fact laid down for their guidance, to have been correct. The question to be determined was, to whom the scrap iron, which was the subject in c.^-J versy, belonged. If the plaintiff, through the agency had purchased it and paid for it with his own money l - come into possession of it, and had in no respect been g1 fraud in relation to the transaction, it was certainly his, t one could justly contest his right to it. And this was the direction in matter of law that was given to the jury. Other transactions, though fraudulent as against the creditors of Race, could not invalidate this, if it was obnoxious to no such objection. We do not understand that the jury were excluded from considering the evidence with respect to the conduct and course of dealing of Race during the preceding three years, and the knowledge of it by the plaintiff, as it bore upon the question whether the property in dispute was attachable by his creditors as the property of Race, on the ground that it was fraudulently conveyed to the plaintiff. This they were allowed to do; but in the end, after weighing all the evidence, they were finally to determine whether the plaintiff had fairly and without fraud become the owner and possessor of the iron before it was taken on legal process by Cobb as the property of Race. Though his creditors may have been deceived or misled in reference to other property or other transactions, by the conduct or course of dealing of Race or of the plaintiff, yet if they were not in relation to this specific property, they have not been injured, or deprived of any just or legal advantage, of which they ought to have had the benefit. They could not interfere with the rights of the plaintiff, honestly and fairly acquired in this instance, although there may have been just ground of objection to his transaction in other negotiations.

3. The rule is perfectly well established, that in actions of tort for the seizure and conversion of personal property, the measure of damages is its value at the time of the conversion. This was so stated by the court in its directions to the jury, which were therefore in that particular entirely correct. The additional qualification, asked for bv the defendant, that the market value of the property at the place where it was converted should be taken into consideration, was properly refused. “ Place,” as used in this connection, was indefinite and uncertain. If adopted, it might have misled the jury by its being supposed to limit them in ascertaining the value of the property to inquiries as to sales made on the precise spot where the conversion took place, or its immediate vicinity. Within such a circumscribed range, it may have been impossible to find that the property had there acquired any marketable value. It is sufficient that the true and established rule of law upon the subject was distinctly stated as the basis upon which the verdict ought to be rendered. Exceptions overruled.