Scharndorf v. Alten

MacLean, J. (dissenting).

It is in evidence that at an auction had on defendant’s premises, the plaintiff’s assignor bid in, among other things, the lot 349 described as “ entire Secretary Typewriter plant, with all dies, jigs, etc., about 360 sets, about 500 boxes of parts, about 1,000 bases, covers and partly finished typewriters; ” that in the bill which he paid was an item “349 Typewriter plant complete $1750.00;” that in the printed list or circular of the sale issued by the defendant was itemized,,“ complete Typewriter plant including about 300 sets of dies, consisting of the Secretary Typewriter, a machine which embodies the greatest perfection in typewriter building, * * * the construction is most marvelous and simplest of its kind. The machine has not been placed on the market as yet;” that in the announcement of the sale the auctioneer said he would sell a typewriter and the entire plant, “ you see it on the table,” including the model that belonged with the parts; and that, after the sale was over, the defendant carried away the typewriter, saying it belonged to him; that he was the owner of it; that, afterward, the plaintiff’s assignor was told “ pay your bill ” and that the defendant gave his word of honor the plaintiff’s assignor would receive the machine, upon which statement the checks for over $4,000 were given, but the defendant refused to deliver the machine; that the moneys paid by the plaintiff’s assignor in checks were turned over by the auctioneer to the defendant, in whose behalf the auctioneer testified that he did -not say that the model machine was part of the plant; and that one Adams testified that the machine had been purchased by him before and that he merely loaned it for exhibition. This and like evidence prompted the court, during the defendant’s side of the case, to remark that the only question to go to the jury was, whether the model was included in the typewriter plant, and the defendant’s counsel to reply, “ Yes, the only question to go to the jury is whether this model typewriter went with the other property that was sold.” Upon a verdict- adverse, judgment went against the defendant, whose counsel now insists that the- action was improperly for conversion because the machine concededly belonged to another; and that the verdict of $1,500 is grossly excessive, no market value having been shown. It may well be, however, that the testimony of the alleged purchaser, certainly interested in the outcome of the action, was not credited by the jury and that the jury found that to a purchaser to whom, however skilled in mechanics, the putting together of the vast number of separate parts would be more than a puzzle, a single model machine, already assembled, would be of the value, testified to in the case, of $3,000.

Lastly, it is urged that the verdict is grossly against the weight of evidence, although the defendant fortified the case against himself by his failure to go upon the stand or to call his foreman to contradict the testimony of the plaintiff and his witnesses upon the one chief issue of fact in the case.

The judgment should be affirmed, with costs.

Judgment reversed and new trial granted, with costs to appellant to abide event.