J. H. Coghill & Co. v. Boring
Before: Baldwin
Synopsis
In an action to recover the possession of personal property, with damages for its detention, the judgment may be for more than the value as alleged in the complaint, if it be within the ad damnum of the writ. The value of the property is only one predicate of the recovery.
Where goods are seized by the Sheriff on an execution against G., and the owners of the goods, so in the Sheriff’s hands, assign them to plaintiff, who replevins them on the ground of fraud in the original sales, the assignors are competent witnesses for plaintiff. This is not assigning a chose in action, but a sale of specific goods.
A witness is not disqualified, because of a mere expectation of deriving, from a suit, some advantage, to which he is not legally entitled.
A bill of sale of “ all the goods and merchandise and property we own, have or have an interest in, in a store in Nevada, county of Nevada, formerly occupied by Bailey Gatzert, and now in the possession of the Sheriff of Nevada county, said goods forwarded by us to Bailey Gatzert, Nevada,” contains a sufficient description of the goods.
To enable a vendor of goods to rescind the sale, he must offer to return the notes given for the goods; but this offer can be made at, or any time before, the trial.
In a suit to recover goods on the ground of fraud in the vendee, the admission of evidence that he was insolvent two months after the purchase, is not sufficient to reverse the judgment, unless it is clearly shown that the evidence was irrelevant, and injurious to the party objecting.
Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.
This was an action brought by the plaintiffs for the recovery of certain goods which the defendant, as Sheriff, had taken into his possession, by virtue of process against one Gatzert. The plaintiffs claimed the goods as their property, on the ground that, though they had been sold by themselves and their assignors, yet that the sale was void, and vested [218]no title in Gatzert, for the reason that Gatzert was really a fraudulent vendee, who obtained possession of them by false pretenses.
The case was tried by a Referee, who found for the plaintiffs, and reported a judgment, which was entered as that of the Court. A motion was made to set aside the judgment, which was denied; and the case comes before us on appeal from this order.
Several errors are assigned:
1. That the judgment is for more than the value of the goods, as alleged in the complaint. This assignment is not good. The damages alleged are larger than the judgment, and a mistake as to the value of the goods, which is only one predicate of the recovery, does not estop the plaintiff from recovering a sum commensurate with the loss or injury sustained by him, if the amount so recovered be within the ad damnum, of the writ.
2. That the Referee erred in permitting the assignors of the plaintiffs to testify. It seems that the assignors were owners of the goods sued for, and they assigned these goods, then in the Sheriff’s hands, to plaintiffs. This was not the assignment of a chose in action, but the sale of specific goods, and, therefore, the assignors were not within the inhibition of the section of the Practice Act which provides that the assignors of a chose in action not arising out of contract, shall not be competent witnesses for the assignee. (Hall v. Harrison, 2 Com. 295.) ' The theory of the plaintiffs’ case is, that no title passed in consequence of this alleged sale, but that the title remained after the form of such sale as it did before, and the suit is brought upon this title as if the ownership had never been changed. In other words, these goods were sold in specie, though they were in the Sheriff’s hands, and with the same effect as if in the hands of the vendors.
3. Nor is there anything in the objection that the goods are not sufficiently described. The general description given was sufficient.
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