Mortimer v. Marder

Foote, C. This action was brought to recover of the .defendants damages for their having caused the personal property of the plaintiff to be seized in attachment in an action in the state of Oregon, brought against the plaintiff’s husband, J. D. Mortimer, by the defendants, and for their having caused the same to be sold under execution, bought in by a third party, and wholly lost to the plaintiff, and thereby converted wrongfully to the use of defendants.

It is alleged that the value of the property thus converted was two thousand dollars, and that the plaintiff spent three months of time and five hundred dollars in pursuit of the property.

Judgment was prayed for two thousand dollars, and interest from the date of the alleged conversion, April 8, 1884, and for the further sum of one thousand dollars and costs.

The cause was tried before a jury, who rendered a verdict in favor of the plaintiff for the sum of $2,612.50, upon which judgment was duly given and made. A motion for a new trial being made, the trial court was of opinion that the verdict was excessive, and that the same should be reduced to the sum of two thousand dollars, and accordingly directed that unless the plaintiff remitted the excess, a new trial should be granted.

The plaintiff entered an acceptance of the reduction thus ordered, and thereupon the motion for a new trial was denied. From the judgment above adverted to, and the order refusing a new trial, this appeal is taken.

One point which appears to be insisted on by the defendants for a reversal of the judgment and order is, that there is no proper legal evidence to sustain the verdict. They seem to rest this assumption upon the idea that the evidence shows,—1. That there was no value whatever of the converted property proven on the trial; 2. That the property was community property; 3. If not, that it was partnership property; 4. That the goods levied on were purchased with money which was community or partnership property.

[177]As to the evidence given in relation to the value of the property, it is to be said that it was shown that it had no market value; that it was second-hand property, and had been lost by the conversion of the defendants, which being so, and no objection being offered to the introduction of the further evidence which tended to show when the plaintiff purchased the property, what it then cost her in the market, how it had been used, and what its condition was, and what the depreciation was, if any, both the plaintiff and her husband testifying that the property seized was worth at least two thousand dollars, and that it was her separate property, purchased with her separate moneys,—it would seem that the evidence of value, unobjected to by the defendants, was a proper basis on which the jury might legitimately fix the value of the same in rendering their verdict.