Brewster v. . Silliman

It is insisted by the defendants' counsel that the referee erred upon the trial in allowing the plaintiff to prove the value of a portion of the property before it was taken by the officer, and before the defendant exercised any control over it. The first witness by whom evidence of this character *Page 425 was given was a ship carpenter, who had repaired one of the boats in question, about one year prior to its conversion by the defendants. He had, therefore, knowledge of its value at this time, and, as it was afterward proved that the boat was in as good condition when it was taken by the defendants as when the witness made the repairs, and had actually increased in value since that time, the testimony was competent as tending to show value. It is further objected, that the referee erred in allowing evidence of the highest market value which property of that description had obtained, from the time of the commencement of the action until the day of the trial. It is, I think, a sufficient answer to this objection, that it appears by the referee's report, that he assessed the value of the property at the time it was taken, with interest from that period, and hence the testimony introduced as to its value at any other time, could not have had any bearing on his decision. There was no error, I think, in refusing to allow the defendants to prove that they offered to return one of the boats to the captain from whom it was taken. It does not appear, that the offer was made at the time when the boat was demanded of the defendants, or that the offer made embraced proof of an attempt to deliver the boat to the plaintiffs. It is also urged, that the court erred in refusing to dismiss the action as to all the parties except Robert F. Silliman, as there was no proof that any of them but him exercised any control over the property. Conceding, that the proof when the plaintiff rested, was insufficient to establish that the other defendants had co-operated with Robert F. Silliman in the conversion of the property and in claiming it, the difficulty, I think, was obviated by evidence which was subsequently introduced to show the liability of all of the defendants. In their answer the defendants justified the taking of the property by virtue of an attachment in their favor against the property of one Cushman, and after the plaintiff had rested, introduced in evidence the attachment papers and proceedings which established, that all the defendants were engaged in seizing and converting the property. *Page 426 Nor was there any error in rejecting the evidence offered by the defendants to prove the costs of repairing the one of the boats after the conversion, and after she had been procured while in the possession of the defendants. The costs of these repairs could not in any way be material or throw any light upon the question of value, and the testimony was properly excluded. The fact that Cushman, the defendant in the attachment, had possession of the property in question under a contract with Ulysses B. Brewster, to purchase the same, and had paid a certain portion of that purchase money, did not give Cushman such an interest in or title to the property as could be sold under a judgment and execution against him. The property still belonged to the plaintiff, and the defendants, in assuming to sell it, were responsible for its conversion. They seized it under an execution against another party, and having refused to return it upon demand, were clearly liable. Whether the judgment is against the weight of the evidence, or the damages are excessive, presents a question which cannot be raised upon this appeal. There was certainly testimony to sustain the referee's finding as to the value of the property, and his finding cannot therefore be reviewed. There was no error upon the trial, and the judgment must be affirmed.