Cowden v. Finney , 9 Idaho 619 ( 1904 )

AILSHIE, J.

This action was commenced by the plaintiff against the defendant as sheriff in the district court of Blaine county for the recovery of the sum of $21,474 as the value of a band of sheep which had been seized by the sheriff and for damages for the detention thereof. The defendant answered and admitted the seizure of tbe property, and justified the same under a chattel mortgage executed by one R. L. Shaw, alleging that due and regular affidavit and notice had been delivered to him, requiring him to seize and sell the property in payment of the mortgage debt under the provisions of the statute providing for foreclosure proceedings of chattel mortgages.

By a stipulation of the respective parties, the cause was transferred to Canyon county, and was there tried before the court without a jury. After all the evidence was introduced and the case was finally submitted, the court made his findings of fact and conclusions of law, and thereupon entered judgment in favor of the plaintiff for the sum of $8,281.35, as the value of two thousand six hundred and twenty-nine head of sheep unlawfully seized and sold by the defendant, and for the costs of the action.

It appears from the record that on November 30, 1901, R. L. Shaw and J. B. Gowan were partners engaged in the sheep business in Canyon county and neighboring counties, and that on that date Shaw executed and delivered to the Flato Commission Company, a corporation, a chattel mortgage for the sum of $18,625.55, covering a large number of sheep, cattle and other personal property, and reciting therein that the sheep were located and kept in Ada county, state of Idaho. This mortgage was executed by Shaw individually and it appears to have been for his individual debt, and purported to be given upon his individual property. It was not accompanied by an affidavit as required by section 3386, Revised Statutes (Sess. Laws 1899, 121). Shaw had no such property in Ada county, and none of the Shaw-Gowan sheep appear to have ever been kept in that county, but were at the time of the execution of the mortgage in Canyon county. In the spring of 1902, about two thousand one hundred head were taken to Blaine county. The mortgage was never filed for record in Canyon county, and was not filed until July 23, 1902, in Blaine county — the county where the property was found and seized by the defendant sheriff on the following day.

After executing this mortgage, Shaw disappeared, and while it does not appear just when he left the country, it is conceded that it was prior to June 8, 1902. His whereabouts since that date seems to be a mere matter of speculation, and it appears that many persons have been anxious to see him. At this time the firm of Shaw & Gowan was indebted in the sum of $4,000, and their creditors were beginning to urge payment. Thereafter, and on June 10, 1902, Gowan sold all the sheep belong-' ing to the firm of Shaw & Gowan to the plaintiff in this action. At the time of the sale about two thousand one hundred head ■of the sheep were in Blaine county and the balance were in Boise county. It should be remembered that up to this time the Flato Commission Company’s mortgage had never been filed for record in either of the counties of Blaine or Canyon, and could therefore give constructive notice to no one dealing with the property in those counties.

Hpon the trial the defendant sheriff introduced evidence tending to show that the plaintiff Cowden had actual notice of the execution of the mortgage prior to the time of the purchase of the property which purported to have been covered by the mortgage. On this point there is a direct conflict, Cowden denying positively that he had any intimation as to the existence of the mortgage, while one witness for the defendant claims that either on the day prior to the purchase, or the day of the purchase, appellant told the witness about Shaw’s conduct and of the existence of this particular mortgage.

There are some things connected with this purchase on the part of the appellant which do not entirely satisfy us of the fairness of the transaction, and if the evidence as presented in the record were before us in the first instance for our consideration, we might find differently; but since there is a direct conflict in the evidence upon this point and the trial court has heard the same and made his findings thereon, we cannot disturb such findings and judgment.

Several other questions have been discussed in this case, but we will only notice the objections urged to the rulings of the court as to the admission and rejection of evidence. The plaintiff was permitted to introduce some evidence that we think was immaterial to prove any issue in the case; but since we have concluded that appellant could not have succeeded at the trial upon any theory of the ease without showing that plaintiff had, prior to the purchase of the propertjr, either actual or constructive notice of the execution of that mortgage, and none •of the evidence of which appellant here complains having been ■directed either to the proving or disproving of this particular issue, its admission or rejection could not have in any way affected him as to the final result of his case. We therefore conclude that appellant was not prejudiced by the action of the court in reference to the admission or rejection of such evidence.

Appellant also complains of the action of the court in receiving testimony as to the value of the property at the time and place of its seizure by the sheriff. We have carefully examined all this testimony, and think it was competent and properly admitted, and that the value allowed the plaintiff was fairly established by the proofs. Counsel argues that the plaintiff should have been limited in his right of recovery to the amount for which the property was actually sold in the Chicago market, less the cost and expenses of delivering them to that market. We cannot agree to such a method of fixing the value of property which has been wrongfully converted. The price received might or might not be the true value of the property, but the plaintiff in such cases cannot be limited in his right of recovery to any bargains the defendant may make as to the price thereof.

The judgment and order denying a new trial are affirmed, with costs to respondent.

Sullivan, C. J., and Stoekslager, J., concur.