Hill v. Gwin

By the Court, Wallace, C. J.: The defendants, in the month of May, 1870, removed from a mill of the plaintiffs, called the “Quaker City Mill,” certain stamps, part of a stamp battery, and a mortar block, the property of the plaintiffs, being fixtures annexed to and used in said mill, and this action was brought to recover damages for the trespass committed by the defendants upon the mill property, and for the value of the fixtures removed. At the trial the plaintiff had judgment, and this appeal is taken from the judgment and an order subsequently entered denying the defendants a new trial.

The several errors relied upon concern the exclusion of certain evidence offered by the defendants, by which they [49]sought to justify the entry and caption complained of. The evidence thus excluded tended to prove that in November, 1869, the plaintiffs, for the purpose of securing the payment of a certain debt, made and delivered to one Morris Murphy a mortgage of the mill, including the fixtures now in question, which were then annexed to and constituted a part of the mill property; that in the month of May, 1870, the defendants by agreement then made between themselves and Murphy entered into the said mill and removed the said fixtures therefrom, and paid said Murphy therefor the full value thereof, which sum so paid by them was subsequently applied under the directions of Murphy to the payment of certain indebtedness of the plaintiffs; that in July, 1870, in a certain judicial proceeding, to which said plaintiffs and said Murphy were parties, a decree of foreclosure was duly entered, directing the sale of the mortgaged premises; that in the month of August, 1870, a sale of said premises was made, pursuant to the decree, at which sale said Murphy was the purchaser, and that in September, 1871, no redemption having been effected in the meantime, the sheriff delivered to said Murphy a deed in the usual form. The court below admitted the evidence for the purpose of showing bona fides upon the part of the defendants, and as tending to negative fraud, malice, or oppression upon their part, but excluded it as tending to justify the entry and appropriation of the fixtures by the defendants.

1. At the trial, which was had in 1872, the evidence as to whether the plaintiffs assented to the agreement between Murphy and the defendants, is admitted to have been sharply conflicting; and judgment having been given below for the plaintiffs, a finding in their favor upon that point must be implied, which finding will not be disturbed here.