Opinion
Argued April 29, 1885
Decided June 2, 1885
W. Bourke Cockran for appellant.
Wm. B. Hornblower for respondent.
The appellant here does not complain of the reversal of her judgment by the General Term, but of the new judgment rendered by that tribunal awarding nominal damages only, instead of the $400 recovered by her in the trial court. The action was for the conversion of certain articles of personal property belonging to Griffith Thomas in his life-time, and claimed by the plaintiff as executrix of his last will. The complaint alleged her title; a demand and refusal; that the property was worth $5,000; and claimed judgment for that amount. The answer denied the conversion, and the valuation put upon the property; and pleaded as an affirmative defense a purchase of the furniture from the plaintiff, after the death of her husband, and before the issue of letters testamentary, for the sum of $400, paid to her in cash. The trial court found as facts, the ownership of the property by the testator and that its value was $400; his death; the issue of letters testamentary to plaintiff in July, 1879; the taking of the property by defendant on February 18 of that year; and six days later the execution by plaintiff of a bill of sale and release of the furniture to the defendant for the consideration paid, of $400, and the discharge and cancellation of an alleged debt due from her husband of $5,250, and that when this contract was made the purchaser knew that the seller had not yet received letters testamentary or qualified as executrix. From these facts was deduced the legal conclusion that the plaintiff as executrix was entitled to judgment for $400, while the General Term ruled that the proper legal conclusion should have been a judgment for nominal damages only, and drawing that conclusion awarded the corresponding judgment. The appellant, without criticising the propriety of the reversal by the General Term, insists that it should have been followed by an order granting a new trial, and not by a final judgment for six cents damages. We have so held in a precisely similar case. ( Ehrichs v. De Mill, 75 N.Y. 370.) There the action was tried before the court without a jury; the facts were all found and without apparent exception or error in the process; the trial court drew from them the legal inference of a judgment for the defendant; the General Term on the contrary drew an opposite conclusion from the facts found and ordered judgment for the plaintiff; and on appeal to this court, while justifying the reversal, we determined that a new trial should have been ordered and the rendition of final judgment was a mistake. It was then contended, as it is now, that the rule had already been declared to be that where the facts were found by the trial court without exception or error in the process of their determination, and so the only open question was as to the legal inference to be drawn, the appellate court might draw that inference and render judgment accordingly. But the answer made was that in such a case we could not know that there had not been exceptions or asserted errors in the process of finding the facts, since the respondent, not having appealed, was under no obligation to procure their appearance upon the record, and might very well have deemed their presence immaterial for any legitimate purpose of the appeal. And the rule was declared to be that wherever the character of issues framed by the pleading was such that upon a new trial it would be possible for the defeated party to recover, such new trial should be awarded.
The appellant claims the benefit of that rule and is entitled to have it enforced. But his adversary contends that even then there could be no recovery for more than the nominal damages awarded, because the contract of sale, although unauthorized when made, was subsequently validated by the after issue to the seller of letters testamentary. Conceding so much for the purpose of the argument, we still cannot say that, within the issues, the contract may not be attacked for fraud, or mistake, or some other reason outside of lack of authority to make it.
So much of the judgment of the General Term as awards judgment for the plaintiff for six cents damages should be reversed and a new trial granted, costs to abide the event.
All concur.
Ordered accordingly.