Dallemand v. Janney

Collins, J. Action for the conversion of certain wines and a small sum of money. One of the defendants was the sheriff of Hennepin [516] county, and justified under an execution issued upon a judgment duly rendered in favor of the defendants Janney against one Allen, alleged to be the owner of the property in question. The assignments of error are directed to certain rulings of the trial court when receiving the testimony, to its refusal to charge as requested by plaintiffs’ counsel, to portions of the charge as given, and to the sufficiency of the evidence to support the verdict. The plaintiffs were wholesale dealers in wines and liquors at Chicago, while Allen, the judgment debtor, kept a saloon in Minneapolis. The seizure was made at the saloon, the wines being in stock, and the money in the cash register. The plaintiffs claimed that Allen held his entire stock of wines and liquors solely as their consignee, and there was introduced in evidence a written agreement for the consignment of these goods by them to Allen, and the original invoices and bills of lading, for the purpose of sustaining their claim, the truthfulness of which was for the jury, and was passed upon adversely to the claimants. 1. The measure of damages, if plaintiffs recovered, was the value of the articles seized, with interest from the day of the seizure. That the defendants had previously been informed of plaintiffs’ claim of ownership' would not entitle the latter to exemplary damages on' the ground that the levy was wantonly and maliciously made. 2. Unless creditors are to be held concluded by a written agreement of the character of that entered into by plaintiffs and Allen, it was perfectly proper for the defendants to show that Allen applied for and procured a license to retail liquors in his own name, and also his declarations as found in the application. The property claimed by plaintiffs was in his possession. He was treating it as if it were his own, selling it out over the bar; all of which was with the plaintiffs’ knowledge and approval. His and their acts in regard to these matters were all competent, as tending to show the real nature of the transaction. Although the chattel mortgage may have been introduced in evidence for another purpose, it was of this same kind of proof, for it tended to enlighten the jury as to the actual relations between plaintiffs and Allen. 3. The plaintiffs’ counsel presented several requests to charge, all of which were refused by the court. As abstract propositions, some of [517] them were correct, and might well have been given; but, instead, the court used, and was justified in using, its own language to convey the same idea. One or two had no relevancy; for instance, the sixth. That was irrelevant, and had no proper place in the charge, because the defendants’ contention was that Allen was the absolute owner of the property, not that, because he had an interest in the profits of a sale, the property could be levied on as his own. 4. When nearly through with the charge the court was interrupted by defendants’ counsel with a verbal request that the jury be informed as to its right to disregard the testimony of any witness who had “sworn falsely” in the case. Thereupon, evidently bearing in mind the language of the counsel, the court charged, in substance, that, if it was found that any of the witnesses had sworn falsely upon any material fact in the case, their testimony might be disregarded, unless they were corroborated by other reliable witnesses. It is argued by plaintiffs’ counsel that the court should have distinguished between unintentional misstatements by witnesses and deliberate falsehood, by stating that it must first be found that a witness had knowingly sworn falsely, before his testimony could be rejected. There may have been a verbal inaccuracy or omission in the statement, but the attention of the court was not at all called to it by a general exception to the entire paragraph. Technically, the counsel may be right in his criticism, but there is so little difference in ordinary discourse and use of words between the terms “false swearing” and “false swearing knowingly or willfully,” that we are of the opinion that the exception should have been more explicit and to the point. We have no doubt but that the correction would have been made instantly had it been suggested. By the general exception the attention of the court was directed solely to the proposition as a whole, and not to the exact accuracy of every part. 5. While the testimony on which defendants rely to sustain their verdict was not very persuasive, we think the court below was warranted in refusing to grant a new trial on the second ground of the motion. There were facts and circumstances shown upon the trial fairly tending to impeach the plaintiffs’ claim that Allen held the [518] property under a contract of bailment, and had no other right or interest. 6. We have not overlooked other assignments of error, but they need not be specially referred to. None are meritorious. Order affirmed. (Opinion published 53 N. W. Rep. 803.)