DocketNumber： 5945
Judges： Sadler, Compton, McGhee, Kiker, Lujan
Filed Date： 11/4/1955
Status： Precedential
Modified Date： 11/11/2024
On Motion for Rehearing
The defendant below, as appellant here, has moved for rehearing. He .asserts three grounds in only one of which,' the third, do we find justification for making an observation. He complains for the first time in his motion that the trial court erred in rendering judgment for an amount equivalent to balance due on the' note, after holding defendant converted the car. His counsel remind us the measure ' of damages in conversion is the reasonable market value of the chattel converted, at time of conversion plus interest, citing Martinez v. Vigil, 19 N.M. 306, 142 P. 920, L.R.A.1915B, 291.
This is a claim of error asserted for the first time on motion for rehearing. Indeed, in his brief filed here defendant virtually invites the court to confine the amount awarded to balance due on the note. His counsel state:
“If the court, should say the promise to pay was outside the Statute of Frauds, all that Gallaher would be obligated to pay would be the Three " Hundred Eleven Dollars and Sixty-three Cents ($311.63).”
Upon giving judgment against defendant the trial court did just that but also added attorneys fees in the sum of $150.00. We held' the court erred in awarding the attorneys fees and ordered plaintiff to file a remittitur in that amount, as a condition of affirmance, which we understand has been done. We did not intend to disturb the prevailing rule on measure of damages in the case of- conversion of .personal property. The trial court gave damages, so far as the car converted was- concerned, ■ for the amount claimed on account of the taking which defendant himself had suggested as appropriate, if the court held the cause of action outside the statute of frauds, as it did.
The motion for rehearing will be denied and the judgment stand affirmed, less the amount of remittitur filed by plaintiff.
It is so ordered.