Sherman v. Clark

Berry, J. 1. This was an action of claim and delivery brought in the district court for Dodge county, to recover personal property detained by the defendant in Olmsted county. As the property was situated in the latter county; the defendant was entitled to have the action tried there under Laws of 1876, c. 51. But he waived his right .in this respect by stipulating that the case should go to a referee to take the evidence and report the same to the district court for Dodge county, before which either- party might bring the case to hearing and trial upon ten days’ notice. 2. The property in controversy was taken from the possession of the plaintiff upon a chattel mortgage, given by the plaintiff to George B. Arnold, to secure the payment of plaintiff’s note to him, the note and mortgage having been assigned [41] by Arnold to defendant. The note was not dne at the time of the taking, nor at the time of tbe commencement of this action. The mortgage contained.no provision respecting the possession of the mortgaged property, except the following, viz.: “But if default be made in such payment,” (i. e., Of the note,) “or if the said George B. Arnold shall at any time before the debt aforesaid becomes due deem himself insecure, he, the said George B. Arnold, is hereby authorized to take possession of and to sell * * * the personal property herein-before mentioned.” This provision specifically defines the circumstances under which the mortgagee shall become entitled to the possession of the mortgaged property, and thus evinces the mutual intent of the parties that, until he is thus entitled, the possession shall remain with the mortgagor. Hall v. Sampson, 35 N. Y. 274. Its effect is to make the rights of the mortgagor .and mortgagee the same as they would have been if the mortgage had contained an express condition that the mortgagor should continue in possession until default in payment, or until the mortgagee should deem himself insecure. Hathaway v. Brayman, 42 N. Y. 322. In the case at bar the debt secured by the mortgage was not due at the time when the mortgaged property was taken by the defendant, neither was it due at the time of the commencement of this action. And it is found by the court that the defendant did not, when he took possession of and removed the property, nor at the time when (ten days after-wards) the plaintiff demanded its return, deem himself insecure, and that he was not in fact insecure. The finding of law that defendant’s taking and detention of the property were wrongful, and that plaintiff was entitled to recover possession thereof, was therefore correct. The court below further finds that the value of the mortgaged property was, at the time of the taking thereof, $300, and that the value of the use of said property during its detention by defendant was $200, and that, “by reason of the [42] taking and detention, the plaintiff has been damaged said sum of $200, and that defendant has sold and disposed of said property, and possession thereof cannot be obtained. ” Upon this basis judgment for the plaintiff was ordered for $500. The assessment of the value of the property as of the time of the taking accords with the principle of the rule laid down by this court in Berthold v. Fox, 13 Minn. 501. From our own observation, as well as from quite extensive inquiry, we are satisfied that in actions of claim and delivery, in the courts of this state, it has been the general, and, we think, the universal, practice to assess the value of the property involved in accordance with the principle mentioned — that is to say, if the plaintiff recovers, the practice is to assess the value as of the time of the wrongful taking, or of the commencement of the wrongful detention, as the case may be; and if the defendant recovers, to assess it as of the time when the property is replevied from him. Under such circumstances we shall not disturb the rule, notwithstanding the case of Allen v. Fox, 51 N. Y. 562, furnishes some very cogent reasons going to show that the operation of the rule may sometimes be unjust. If the rule is to be changed it had better be done by legislation, by which, at the same time, we think some further improvements might well be made in the procedure in “claim and delivery.” The defendant claims that where the value of the use of the property during its detention is allowed as damages for detention, the value of the property should be assessed as of the time of the verdict or finding. The correctness of this position would evidently dejiend upon the nature of the property. If the property was of such a character as necessarily to perish, or become worn out or impaired in value in the using, or perhaps if, in a particular case, this effect was shown to have resulted from using, then there might be ground for complaining that to give the value of the property at the time of the taking, and also the value of its use as damages, would be to include a part of the value of the property twice, [43] since the value of the use would be made up in part of that portion of the value of the property which was destroyed in using. But as to property of the kind involved in this case— to-wit, a pair of horses, a wagon, neck-yoke, whiffletrees, seat, harness, and a set of double sleighs — it cannot be said that, taking it as a whole, it would necessarily or did in fact perish, or become worn out or impaired in value by reasonable use. As the finding of the court is as to the value of the use of the property as a whole, and of the damage occasioned by the taking and detention, and the finding is to be presumed right if it reasonably can be, it may well be supported upon this basis. Judgment in this case is ordered below for $500 and costs. The defendant makes no exception to this order for judgment, this appeal being taken from an order denying a new trial; but, to prevent future embarrassment, we call attention to the fact that the judgment in a case of this kind should be in the alternative. Berthold v. Fox, 21 Minn. 51. Order affirmed.