9 Utah 378 | Utah | 1894
In this action the plaintiffs seek to recover damages for the wrongful .taking and conversion of a certain stock of millinery, goods. The jury rendered a verdict in their favor for 8359.58, and the defendants appealed from the order denying a new trial, assigning various errors.
It is alleged in the complaint that the defendants converted the goods to their own use to the damage of the plaintiffs in the sum of $1,000, and that because of the conversion, the plaintiffs were broken up in business, and
In their answer the defendants set up a counter claim, consisting of an indebtedness represented by four promissory notes of $100 each. The action having been brought for a tort, counsel for the defendants claim that plaintiffs waived the tort by failing to object to the counter-claim, and therefore can- recover only for the value of the property, less the counter-claim. The indebtedness, set up in the counter-claim, was created through the purchase of the goods in question' from the defendants. The plaintiffs recognized it as a valid claim for which suit could be maintained, and both parties appeared to be willing to have all their matters in controversy settled in one suit. This they could do, in the absence of objection at the trial. The defendants having proceeded to try the case on the issues thus joined, without objection, and without raising this question before the trial court, are not in position to raise it for the first time in this court. We are of the opinion that they waived their right to raise it here and that plaintiffs did not waive the tort. Western Pac. R. R. Co. v. United States, 108 U. S. 510.
We do not consider it necessary to decide the question as to whether the counter-claim should have been stricken out under objection.
Counsel insist that the judgment was erroneous as to Louis Simon and that the evidence shows that he was not one of the Simon Bros. The evidence show.s him to be a joint tort-feasor, and, as such, he is jointly liable with the other defendant for the wrongful acts, the jury having so found under the evidence. There is evidence which tends to show that he was a member of the firm of Simon Bros.
The remaining point, on which the defendants seek to have the judgment set aside, is that of newly discovered evidence, which evidence is to the effect, that Miss Wim-
This statement, as shown by the defendants, having been made on the same day on which the plaintiff moved from Spanish Fork to Payson, with the knowledge and consent of Simon Bros., for the purpose of carrying on the business at Payson, could have no material effect on the merits of the case, in the light of the testimony introduced on the trial, and was therefore not sufficient ground for a new trial. There appears to be no error in the record. The judgment is affirmed.