Sherman v. Finch

Ross, J. This action was brought for the alleged conversion of certain personal property. Upon a part of the property plaintiffs held a chattel mortgage, and for the other part a bill of sale from one Gibson, who [69]was the original owner. Gibson was in debt to one Schoonover, upon which indebtedness he was sued, a judgment given against him, and on which judgment an execution was issued and placed in the hands of the defendant officer. The officer levied upon and sold all of the said property, under and by virtue of the execution, as and for the property of Gibson, and sought to justify his proceedings upon the trial. The case was tried with a jury, and the verdict was against him. It is claimed to have been contrary to the evidence in the case, and errors of law are also claimed to have been committed during the progress of the trial. Among them is an alleged error in the instructions of the court in respect to the measure of damages. At the request of the plaintiffs, the court instructed the jury that if they should find from the evidence that the plaintiffs were the owners of or entitled to the possession of the property as pledgees, and that the defendant wrongfully converted it, the detriment caused by such wrongful conversion was presumed to be: 1. The value of the property at the time of the conversion, with interest from that time; and 2. A fair compensation for the time and money properly expended in pursuit of the property.

Defendant, who is the appellant, does not complain of this instruction, but concedes that it was proper and in pursuance of section 3336 of the Civil Code, which reads:—

“ The detriment caused by the wrongful conversion of personal property is presumed to be: 1. The value of the property at the t ime of the conversion, with the interest from that time, or where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, with interest at the option of the injured party; and 2. A fair compensation for the time and money properly expended in pursuit of the property.”

[70]But the court below further instructed the jury that if they should find that the defendant levied upon, sold, and converted that portion of the property upon which the plaintiffs held a chattel mortgage, “and that the said defendant neither paid nor tendered to said plaintiff the amount of the mortgage debt and interest, nor deposited the amount thereof with the county clerk or treasurer, payable to her order, then it will be your duty, as to that particular property, to render a verdict for the plaintiff in the amount of the mortgage debt and interest, to wit, the sum of $250, with interest from the 25th of September, 1882, at the rate of eight per cent per annum.” And again: “The plaintiffs have introduced in evidence a chattel mortgage; if you find that said mortgage was duly executed, delivered, and recorded, then I charge you that it devolves upon the defendant, the party attacking the instrument, to satisfy you that said mortgage was fraudulent, and that the plaintiff Jennie M. Sherman was a party to the fraud, and that if the defendant fails to do this, you will find a verdict for the plaintiffs in reference to the property mortgaged for the amount of the mortgage debt, principal and interest.” It is contended on behalf of the appellant that the instructions last quoted are in themselves erroneous, and are also in conflict with that first given.