Clement v. Brown

Breese, J. This was an action on the case brought originally against the plaintiff in error, and one Burton and Crain, as bailees of certain goods, wares, and merchandise and chattels, the property of the defendant in error, as alleged, with a count in trover added. The defendants pleaded separately not guilty. During the progress of the trial, after the arguments to the jury were concluded, the plaintiff dismissed the case as to Burton and Crain, and the jury returned a verdict against the plaintiff in error for four thousand and forty-five dollars and ninety-nine cents, being the exact footing of the bill of particulars accompanying and filed with the declaration. Among the items charged in the bill of particulars, are the following: To lumber, shingles, nails and butts, and screws, and work for house at store, ,........... «gfS.OO Lumber for back-house, and digging hole for same, and hogshead, - 5.00 Two counters, one table-counter, and part of one counter and shelving, and boxes for goods, and pail,.......100.00 To lumber, and door and nails, making bed-room in store, - - 10.00 Two board signs,......„ - - - - 15.00 Two hitching rails and posts, and iron hooks in same, - - 5.00 To cash paid for white fish, fire works, lemons and candy, - 30.00 These items, with the goods and merchandise, made the above sum, which was marked in pencil, as the footing up of the bill of particulars, and for this the verdict was rendered. A motion for a new trial was duly entered, and among other reasons assigned therefor, was this allowance by the jury of items for which trover could not be maintained, but the court denied the motion, and rendered judgment on the verdict. It is quite clear, the verdict, to the extent of these items, is wrong, and to that extent, certainly, the damages are excessive and against the evidence. We were, at first, under the impression that the verdict might be sustained by excluding these items as not having been taken into the computation by the jury, but on examining the case more thoroughly, we have become satisfied that the jury took the footing in pencil as their only guide, and found their verdict in exact conformity to it, for, on investigation of all the evidence in support of the claim of the plaintiff below, we find, without these items, an amount due to the plaintiff much less than the verdict, so much less as to justify setting it aside. Brown, it appears, was a merchant in Duquoin, and had an old and a new stock of goods in his store. He sold the old stock to Clement, and put him in possession, and of the new stock also. The former clerk of Brown, one Morse, was continued in the store to keep account of the sales of the new goods. He was discharged by Clement early in July. He states in his testimony, that the old stock only was sold, an invoice of which had been taken by him, in April, 1860. The new stock was brought in the store the first week in May following, and the sale of the old stock was made on the 28th of May, and for it Clement was to pay three thousand dollars in notes, and satisfy some debts owed by Brown. The new stock was valued at three or four thousand dollars. He states that the bills filed with the declaration contain a correct list of the articles comprising the new stock, and the prices are the retail prices made up by adding from twenty-five to-thirty per cent, to the wholesale prices, with fifty per cent, added on a few articles. One Tucker; sworn as a witness, testified that the bills produced were the same bills of goods with the prices annexed, as he had put a mark on them. By a careful addition of these various bills of the new stock, they are found to amount to the sum of two thousand six hundred and seventy-two dollars and thirty-seven cents. These were the wholesale prices, as appears by the bills. On what portion of them twenty-five, or thirty or fifty per cent, was added, we are not informed, but assuming, as an average, that thirty per cent, was added on each article, and which would seem to be fair, the retail price of these goods when converted by Olement, without allowing anything for sales out of them, from the first week in May to the 28th of May, when Clement got possession, would be eight hundred and one dollars and seventy-one cents, which added to the invoice price, two thousand six hundred and seventy-two dollars and thirty-seven cents, would make but three thousand four hundred and seventy-four dollars and eight cents, as the value of the goods converted. The verdict was for four thousand and forty-live dollars and ninety-nine cents, being an excess of five hundred and seventy-one dollars and ninety-one cents, over and above the amount properly recoverable, on the plaintiff’s own testimony. The verdict is clearly, to that extent, unwarranted by the evidence, and must be set aside, and the judgment reversed, and the cause remanded. We have confined our examination to the main point in the case. The points made on the several rulings of the court as to security for costs, and permitting the plaintiff to sue in forma ¡pawperis, were so much in the discretion of the court that error cannot be assigned on them, as they are presented in the record. Nor was there any error in refusing to hear the testimony of Tetrick and Watkins offered by the plaintiff, as it was merely cumulative, the fact having been admitted by the witness Morse. Judgment reversed.