Illingworth v. Greenleaf ( 1866 )

By the Gowrt

Berry, J.

The complaint in this action charges the appellant with having converted to his own use, certain personal property of the respondent, and with having refused to return or pay for the same on demand made. The value of the property is claimed as damages, with interest thereon from the date of the demand. The complaint is then in substance, the common law declaration in trover, and the action sounds in tort. It follows that the account for goods sold and delivered, which was undertaken to be set up by the appellant as a counter-claim, was properly ruled out. As to the other matter of counter-claim, to-wit, the gold watch case for which it is claimed that the respondent agreed to pay, this was also properly rejected unless it was “ connected with the subject of the action,” as provided in Subd. 1, Sec. 71, page 541, Pub. Stat. The subject of this action is the conversion of certain personal property of which the gold watch case in question is not a part, so that even if the alleged agreement to pay for the same rested on a valid consideration, it is difficult to see how or where it is connected with the subject of the present action. Besides, as both counter-claims were withdrawn by the appellant in the course of the trial, and so taken out of the case, it is difficult to see how any ruling which had been made with regard to them, could possess practical importance. As to the objection that the testimony in regard to the average value of the watches and watch cases was “incompetent, immaterial and irrelevant,” it is obvious that competent testimony as to the value of the converted property, was both material and relevant, and we think this was competent. The object was to inform the jury what the value of the property was, and this might be done, and well done, by evidence of the average value of the articles composing that property. Nor could the adverse party suffer injury, for if he was dissatisfied with the average testified to, it was his privilege to analyze the process by which this average was arrived at, on cross-examination. Whether the evidence offered to establish a custom among dealers in gold watches, to take out the movements and sell the cases alone, was properly received or not, is unimportant. The only object or effect of this evidence, was to show that the unusual manner in which the watches were offered for sale by the resjDondent’s son, ought to have aroused suspicion, and to have rebutted any presumption that he was acting for his father in the premises. But there was no evidence whatever, tending to show that the son was bis father’s agent for the purpose of any such transaction as the sale of these watches, so that the proof of the custom was entirely unnecessary. However, as we are unable to perceive how any harm could have resulted to the appellant from its admission, such admission, even if unnecessary and improper, would furnish no ground for a new trial.

We find no error in the charge to the jury. There was no evidence in the case tending to show agency, express or implied, on the part of the respondent’s son, to transact business of the kind in question, for his father, and so far from any ratification of the acts of the son, 'the fact of a demand of the watches or their value, followed up by the bringing of this action, amounts to a positive disavowal. It was proper to charge accordingly.

The modifications by the judge of the requests to charge made by the appellant, were so obviously correct, that it is hardly necessary to refer to them. We cannot say that the evidence was insufficient to justify the verdict. Order refusing a new trial affirmed.