Stickney v. Bronson

By the Court. Ejumett, C. J. This was an action to recover the value of certain goods alleged to have been wrongfully taken and detained by the Defendant, together with damages. The value was alleged at $2568, and the damages [219] at $1000. The Defendant justified the taking, tinder an execution in his hands, as a Sheriff of the County, against the property of Peckham Brothers, who, he avers, were the owners of the property, at the time it was taken. He denies any damage and alleges that the property was not worth more than the sum of $1,500. He also avers that the sale from Peckham Brothers to the Plaintiff, was made with the intent to hinder and delay creditors, and sets forth certain facts tending to show the alleged fraud. The reply puts in issue the allegations of fraud. The case was tried upon the question of fraud, and the value of the goods, and the jury found a verdict for the Plaintiff in the sum of $2035. The Defendant moved for a new trial, which being denied, he then appealed to this Court from the order refusing to grant the new trial. The verdict of the jury, sustained as it is by the weight of • evidence, is conclusive upon the Defendant, as to the question of fraud, and the ownership of the property; and we have only to inquire whether the evidence will justify a verdict for the amount of that rendered. There does not appear to have been any evidence of damage beyond the value of the property taken, and we must therefore confine our inquiries to the evidence offered touching the value of the goods in controversy. It appears that at the time .the Defendant took the property, which was a stock of goods, E. W. Peckham, one of the Defendants in the execution, on which they were taken, called off the goods, and the Plaintiff and the Defendant each made a memorandum from such calling, of the several articles, and of their cost in the city of New York. On the trial the Plaintiff testified to this fact, and then offered, in connection with his own testimony the memorandum which he had made as evidence of the number and value of the items. To this the defendant objected, unless the correctness of the memorandum was first established by the testimony of the person who called off the items and the cost, contending that the memorandum was not the best evidence — that it was incompetent, and that the cost of the goods in New York, was no [220] evidence of their value here. The objection was overruled by the Court — the memorandum admitted, and thereupon the Defendant excepted. The aggregate value according to the memorandum was $2,019,03. The witness, the Plaintiff, was then asked what was the value of the goods here, at. the time they were taken by the Defendant, with reference to the prices fixed in the memorandum. The Defendant again objected as before, the objection overruled, and an exception taken. The witness then stated, in answer to the question — that the goods were worth all of twenty per-cent more here, at that time — that they were worth in gross between $2400,00"' and $2500,00. On the cross examination, however, he admitted that he had no other means of knowledge of the number of the articles, or their cost, except as called off by Peckham. That he had no personal knowledge of the cost prices in New York, except what they told him, and that he did not know whether Peck-ham called off the number or cost prices correctly. Robert W. Peckham also was examined as a witness, and stated, Defendant objecting, that in his judgment the cost mark was put down opposite to the items in the memorandum and that the goods would sell at retail for more than forty per cent over the cost prices. He admitted however that he had nothing to do with making the memorandum, but said he knew the cost of the goods in New York, and believed the memorandum to be correct. This was all the evidence offered by the plaintiff in reference to value. It will be seen by this statement of the evidence, that, the-value of the goods here, was estimated or predicated upon their cost in the city of New York, and that the cost in New York was arrived at mainly, if not wholly from a memorandum, which neither of the ^witnesses could swear to be correct. The Plaintiff endeavors to break the force of the objections urged against' admitting the memorandum, under such circumstances, and against such testimony as that detailed above, by insisting that the memorandum was not offered as independent evidence, but in connection with the testimony [221] of tbe witness. That be bad tbe right to fix, or even suggest any standard of value, and then to ask tbe witness tbe value, with reference to this standard — and that although such a course might have been leading, yet as it was not objected to on that ground, it would not avail tbe Defendant now. The positions here assumed by tbe Plaintiff would have bad more force, bad tbe memorandum been referred to simply as a standard of value, leaving tbe witness to state bow much more or less tbe articles were worth, than stated on tbe memorandum ; but tbe objection is that tbe memorandum was admitted as evidence in tbe case, and whatever may have been tbe object or theory of tbe offer, it was received and relied upon as evidence of what tbe goods bad cost in tbe city of New York, and tbe witness estimated tbe value solely upon tbe original cost as thus established. Tbe memorandum, even if it bad been made by one having personal knowledge of tbe facts therein stated (which was by no means tbe case here,) could only be admitted as auxiliary to tbe testimony of tbe person making it, and not as a substitute for such testimony, and its accuracy must first have been duly certified to, by him who made it, and be must then have been unable to speak from memory without the aid of tbe paper. Here, however, tbe witness could testify only to bis having made a correct note of tbe prices as stated by another person, but as to whether that person stated them correctly, be could not, nor did be pretend to know. It was impossible to establish tbe correctness of tbe memorandum without tbe aid of tbe testimony of tbe person who examined and called off tbe prices as they were taken down. We are of opinion that tbe accuracy of tbe memorandum was not certified to sufficiently to warrant its being received even in aid of tbe oral testimony of tbe witness, much less as independent evidence from which tbe jury were to arrive at tbe cost of tbe goods in New York, a fact necessary to be determined before they could, from tbe testimony offered, arrive at tbe value of tbe property here ; for, as before remarked, tbe witnesses predicated^tbeir estimates upon tbe original cost, stating in substance and effect, that the several articles were [222] worth at tbe place of taking, a certain per cent oyer the cost, and assuming that the cost was correctly set| down in the memorandum. The testimony of these witnesses fix no value except in reference to the original cost of the goods ; and there is no evidence of the original cost aside from the memorandum. This error is not however necessarily fatal to the whole verdict. The defendant admitted in his answer that he took the goods described in the complaint, and that they were worth the sum of $1500; and as the jury found for the Plaintiff on the question of title, he was on that finding entitled to a verdict against the Defendant for the admitted value of the property at all events. The Defendant could not therefore be prejudiced by the error committed, except in so far as the verdict of the jury exceeds in amount the value of the property as thus admitted. The injury may in fact be for less than this excess, but certainly cannot exceed it. And as this prejudice may be entirely removed by a remittitur, we will give to the Plaintiff the opportunity to corect the error without driving him to another trial of the issues found in his favor. To this end we will reverse the order appealed from, and grant a new trial, unless the Plaintiff enter in the District Court a remittitur of so much of the verdict, as exceeds the value of the goods as admitted by the answer, and interest thereon from the time of the taking complained of to the recording of the verdict.