Opinion
[Syllabus Material] [Syllabus Material] Rehearing Denied 18 Cal. 689 at 693.
Appeal from the Sixth District.
Suit against a Sheriff for damages for an illegal seizure and sale of plaintiff's property.
On the ninth of February, 1860, Joseph Virgo, who was insolvent, sold his saloon and bar fixtures, liquors, etc., to Cassin & Covey, and delivered them possession under the following circumstances: On said day, Folsom, the barkeeper of Virgo, held two of his notes, one dated about six months previously, for three hundred and twenty dollars, and the other dated Feb. 9th, for two hundred and sixty-eight dollars and sixty-three cents, both payable on demand. Virgo also owed Covey three hundred dollars; and Covey, hearing that he was about to sell to Cassin, applied for security for his claim. The result was, Virgo then sold to Cassin and Covey, the consideration being the Folsom notes, the Covey debt, and a promise on the part of the vendees to pay three hundred and eleven dollars to certain other creditors of Virgo--making a consideration of $ 1,200 for the bill of sale given. Before the consummation of the sale, Folsom had transferred his two notes to Sarah J. Carroll, and she had indorsed on each of them: " Feb. 9th, 1860. I here by transfer this note to Stephen J. Cassin. Sarah J. Caroll." And Cassin having the notes, surrendered them to Virgo at the time of the sale.
Covey sold his interest to Cassin, in a few days, for one hundred dollars. Soon afterwards Cassin advertised the property for sale at public auction. At the time the auction was about to commence, Frey, a creditor of Virgo, attached the property, and took possession through defendant Marshall, as Sheriff. The Sheriff subsequently sold the stock and paid the proceeds to Frey.
On the trial, Cassin, who was put on the stand by defendant, testified, among other things, that Miss Carroll " gave me the notes to get the money for her; " that he did not " give her any obligation therefor" --" didn't agree to pay her any interest; " that " she had nothing but his word therefor," and that he did not know how much he now owed her--may be $ 1,000; that he owed her " the balance of these notes; " that at the time he had $ 3,000 or $ 4,000 of his own money in the bank. Neither Cassin nor Covey ever paid the three hundred and eleven dollars to the other creditors.
On the trial, defendant offered to show, in order to establish a measure of damages, that the property, when sold by the Sheriff, brought full, fair auction prices; and also to show what it actually brought; also that he was instructed by Frey to employ a competent auctioneer to sell the property, and did so. Ruled out; defendant excepting.
The Court charged the jury as stated in syllabus No. 3.
The jury found for plaintiff, fixing the value of the property at $ 1,394. Judgment was entered for $ 1,357, with interest thereon from date at ten per cent. per month.
Defendant made a motion for new trial, but did not object to the judgment for any error in interest. Overruled. Defendant appeals.
COUNSEL:
I. Plaintiff had no authority from his principal, Carroll, to purchase the property sued for with her notes given him to collect in money, nor did she ratify his purchase, and it was void against subsequently attaching creditors. (Taylor v. Robinson , 14 Cal. 396.)
II. The judgment does not correspond with the verdict. The verdict was for $ 1,394 89, and the judgment which was entered at once, was for $ 1,357 37. (Pr. Act. sec. 197.)
III. The judgment is erroneousin allowing interest at ten per cent. per month.
IV. The Court erred in ruling that the measure of damages was what the articles could be replaced for in the market. If plaintiff did not by his own act establish an inferior measure, the proper and legal measure of damages would be the market value of the articles. There is a wide distinction between the value of property and its cost price. The present value may differ materially from " what it would cost to replace the article." The article may be old and imperfect, and could only be replaced by a new article. Besides, it might be incapable of replacement, except at great expense.
The true rule of damages in such cases is the value of the property at the time it was seized, and legal interest on the amount from that time up to verdict. (Phelps v. Owens , 11 Cal. 22; Dorsey v. Manlove , 14 Id. 553; Sedg. on Dam. 287; 3 Graham & W. on New Trials, 1120, citing Cortelyou v. Lansing, 2 Caines' Cases, 200.)
V. The true measure of damages in this case was the fair auction value of the goods, because plaintiff, being about to sell them at auction on the very day when he was prevented by defendant's levy, had establishedthat criterion. If the articles were worth more than what plaintiff had himself arranged to sell them at, the loss of such excess of value was a damnum absque injuria. (Sedg. on Dam. 592; 14 Cal. 555.)
Winans, for Appellant.
Frank Hereford, for Respondent.
I. The property was Cassin's, in his own right. The property was sold to him, and not to Miss Carroll; she never at any time owned the property.
II. The notes belonged to Cassin. But even if he was agent for Miss Carroll, he had the right to sue on the notes in his own name; and equally to sue in his own name for the property bought with the notes. (Ord v. McKee , 5 Cal. 516; Girard v. Taggart , 5 S. & R. 27; Tyler v. Freeman, 3 Cush. 261; 1 Chit. Pl. 151; Story's Agency, 479.)
At all events, a stranger, as defendant is, cannot object that the sale to Cassin was void, if Carroll does not. (5 Johns, 48.)
III. The judgment cannot now be objected to for error in its amount, because no exception was taken at the time, when it might have been corrected.
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
On petition for rehearing, the opinion of the Court was delivered per the same Justices.
Rehearing denied. When we modify the judgment below for an apparent error, which the counsel for appellant might have corrected below by specific motion for that purpose, we think it not equitable to tax the costs to the respondent. Our practice has been heretofore as in this instance.