Summary
holding that used clothing and household goods do not have a market value
Summary of this case from Kielhurn v. GiammarinaroOpinion
Argued October 18, 1921
Decided November 29, 1921
Irving W. Cole and Percival M. White for appellants. Leonard W. Gibbs for respondent.
On May 29th, 1914, the plaintiff stored in the defendants' warehouse a quantity of household furnishings consisting of 121 items for which she was to pay storage of $4.50 per month. She gave her name as Mrs. Ira Lake and her future address as 62 Henry street, Toronto, Ontario. The receipt accepted by her contained a list of the items consisting of beds, stands, rockers, chairs, cabinets, mattresses, gas range, pictures, paintings, books and the like. For a period of eighteen months the plaintiff failed to pay the storage although numerous bills were sent to her at the address given. The defendant, by registered mail, and in accordance with the provisions of the General Business Law (Cons. Laws, ch. 20), article IX, relating to warehousemen, notified the plaintiff that unless the charges were paid by November 27th her goods would be advertised and sold at public auction on the 15th day of December, 1915. Not hearing from the plaintiff the defendants sent a second notice on December 17th, 1915, to the like effect, notifying her of a sale on January 17th, unless the charges were paid. Thereafter the defendants advertised a sale for January 20th in accordance with section 118 of the said law and sold on that day to the highest bidder. The fact that there was a discrepancy between the date of the sale in the notice and the date of sale in the advertisement was immaterial in view of the failure of the plaintiff to be harmed thereby or be present on either of the dates. Thereafter the plaintiff brought this action for conversion claiming that the warehousemen had failed to comply with the law.
The fact that the receipt given to the plaintiff contained a provision that if at any time storage charges for twelve or more months were unpaid, the goods stored might be sold to pay the same without further notice, was of no effect in view of the provisions of section 91 of the Warehousemen's Law (General Business Law), which provides that the receipt must contain nothing contrary to the provisions of that law. Section 118 provides how a lien may be satisfied and how the notice must be given.
The trial justice ruled that all the provisions of the law had been complied with by the defendants with the exception of one and that was regarding the notice published in the newspapers. Section 118, subd. d, says: "An advertisement of the sale, describing the goods to be sold, and stating the name of the owner or person on whose account the goods are held, and the time and place of the sale, shall be published once a week for two consecutive weeks in a newspaper published in the place where such sale is to be held."
The notice in this case read: "A quantity of household goods stored by Mrs. Ira Lake. These goods were stored by and held for the account of the above named person."
The judge, holding that this description did not comply with the law, charged that there had been a conversion and that the jury were to give the plaintiff the value of the goods, which the jury found to be the sum of $1,400.
We think, in this case, it was improper for the judge to hold as a matter of law that this description was insufficient. We do not say as a matter of law that it was sufficient, but considering the long list of one hundred and twenty-one items of major and minor household belongings, it is quite natural to ask how could they be otherwise described except by detailing each of the one hundred and twenty-one items. To require this would be unreasonable and cause an unnecessary expense. Considering, however, the nature of the articles as described by the plaintiff, the use to which they had been put, it was a question, we think, for the jury to pass upon and to say whether, the description as "a quantity of household goods stored by Mrs. Ira Lake" was a reasonable and proper description under the law. Was this such a description as would ordinarily give to prospective purchasers or buyers a fair indication of what was to be sold? For this reason we think the judgment must be reversed and a new trial had.
Objection was made to the court's refusal to charge as follows: "Your Honor, just a suggestion and a request, that the measure of damages is the market value of the goods at the time they were sold by the storage company; that that is the measure of damages which the jury must determine."
The court had charged repeatedly that the plaintiff must prove the value of the goods, but had not confined value to market value. We do not say that this was error in view of all the statements in the charge, but as there must be a new trial we call attention to some exceptions to the market value rule.
Wearing apparel in use and household goods and effects owned and kept for personal use, are articles which cannot in any fair sense be said to be marketable, and have a market value, or at least a market value which is fairly indicative of their real value to their owner and of his loss by being deprived of them. Where such articles have been converted, the amount of the recovery ought not to be restricted to the price which could be realized by a sale in the market. The owner should be allowed to recover the value to him based on his actual money loss, all the circumstances and conditions considered, resulting from his being deprived of the property, not including, however, any sentimental or fanciful value he may for any reason place upon it. ( Barker v. Lewis Storage Transfer Co., 78 Conn. 198; Green v. Boston Lowell R.R. Co., 128 Mass. 221; Sedgwick on Damages [9th ed.], vol. 1, p. 504, §§ 250, 251; Sutherland on Damages [4th ed.], vol. 1, §§ 1109-1117.)
The judgment should be reversed, and new trial granted, costs to abide the event.
HOGAN, CARDOZO, POUND, McLAUGHLIN and ANDREWS, JJ., concur; HISCOCK, Ch. J., concurs in result.
Judgment reversed, etc.