Rogers v. Huie

Action of trover. The plaintiff alleges in his complaint that, on the 12th day of December, A. D. 1850, he was the owner of twenty-nine kegs of butter, of the average weight of twenty-five pounds each, and of the value of thirty cents per pound; and also of one hundred cheeses, weighing fifteen hundred, pounds, and worth twenty cents per pound ; and that the value of the butter and cheese together was five hundred and seventeen dollars. The complaint further alleged that the butter and cheese were taken away from, the plaintiff without his knowledge and consent by some person or persons to him unknown, and passed into . the hands of the defendant, an auctioneer in San Francisco, who converted them to his own use without the knowledge or consent of the plaintiff.

A general answer was put in by the defendant denying the allegations of the complaint.

The cause was tried before a jury, win rendered a verdict in favor of the plaintiff for $437,50.

It was established, on the trial of the cause that the plaintiff, who was a merchant in Boston, shipped the butter and cheese in question to his agent- at San Francisco, and that, on their arrival at that place, the agent had them lightered from the ship, and deposited on shore, on the 9th day of December, where they were left. On the 14th day of December, the agent went to show them to a customer, and found that they had been carried away. They had, in fact, been' stolen, and taken by the thief to the defendant, who was an auctioneer, and by him sold in the usual course of 1ns business. The proceeds of the sale, after deducting the commissions of the defendant, had been paid over to the thief. There is no suspicion that the defendant supposed that the property had been stolen, or that he acted otherwise than in perfect good faith.

There was no evidence to show that the thief had been convicted for the larceny.

The court was asked to charge the jury upon several points, only two of -which it will be necessary to refer to, as they were the only ones insisted upon by the defendant’s counsel on the argument in this court. They were as follows :—

1st. That if the defendant acquired the possession of the goods in market avert, or in the course of his public employment as an auctioneer, then the plaintiff cannot recover.

2d. That the plaintiff cannot recover, if the goods were stolen, until conviction of the felon.

The court refused to charge the jury as requested, and the defendant’s counsel excepted.

After verdict a motion was made for a new trial, on the ground of surprise, founded on affidavits. The affidavits set forth, that on the trial of the cause the defendant was taken by-surprise, and wholly deprived of the evidence of II. D, Mewliall, W. J. Sherwood, T. McMahon, J. Josephs and L. Josephs, by whose testimony he expected to prove a complete and valid defense to the action ; that, on the day of the trial, the names of the said witnesses were inserted in aprecipe directed to the clerk of the district court, desiring him to issue subpoenas for the witnesses, and that such precipe was placed on one of the desks in the clerk’s office, during the temporary absence of the clerk therefrom, in a position the most likely to attract the attention of the clerk oil his return, but that, owing to some accident, it did not come to the knowledge of the clerk until a period too late for the purposes of the trial, in consequence whereof the defendant was obliged to go to trial, without the witnesses upon whose testimony he relied to support his defense, and who, as he believed, had been subpoenaed. The affidavits further set forth, that the defendant has a good and substantial and meritorious defense against the claim of the plaintiff, and that the testimony of the witnesses above named is important and material to his just defense, that he can produce such witness on a new trial, and that the failure of his witnesses to attend on the former trial, was not the result of negligence on his part, hut was an accident which diligence could not prevent nor prudence foresee, and against which the defendant had attempted to guard.