Cumbey v. Lovett
| Decision Date | 17 May 1899 |
| Docket Number | 11,290 - (12) |
| Citation | 79 N.W. 99,76 Minn. 227 |
| Parties | WILLIAM N. CUMBEY v. ARTHUR S. LOVETT and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by plaintiff, as assignee of Betty Weitzner, Dora Gruenberg and Charlotte Gruenberg, partners as Weitzner, Gruenberg & Co., to recover possession of certain cases and boxes of merchandise or for judgment for $16,144.71, the alleged value, and $3,000 damages for the detention thereof. The case was tried before Belden, J., and a jury, which rendered a verdict in favor of defendants; and from a judgment entered in pursuance of the verdict, plaintiff appealed. Affirmed.
Replevin -- Allegation of Title -- General Denial -- Evidence.
1. Where the plaintiff, in an action of replevin, merely alleges generally that he is the owner of the property, without setting out the source or nature of his title, the defendant may, under a general denial, prove any facts tending to rebut the allegations of the complaint, as, for example, a special property in himself, which entitles him to the immediate possession.
Replevin -- Verdict -- Finding of Value -- Possession.
2. The rule that in replevin the value of the property shall not be found where the verdict is in favor of the party having the possession applies where his right of property is special as well as where it is general.
Verdict Sustained by Evidence.
3. Evidence held to justify the verdict.
Accord and Satisfaction -- Account Books -- Admission of Agent of Assignors Binding upon Assignee.
4. The defendants and the agent of plaintiff's assignors, in adjusting and settling the account of the former against the latter, examined the account as contained in the books of the defendants, and the agent admitted, and assented to, its correctness, and the parties made the settlement, and agreed on the balance due, in accordance with defendants' books. Held, that the admissions of the agent, thus made during the settlement, were admissible against plaintiff's assignors, claiming under an assignment made subsequent to the settlement. They were not mere admissions as to past transactions, but a part of the res gestae, while the agent was transacting the business of his principals. Also, that in connection with this evidence, the statement of the account, as contained in defendants' books, was admissible in evidence, although no foundation had been laid under the statute for the admission of the books.
Possession -- Lien for Advances -- Charge to Jury -- Exception to Charge not Specific -- Burden of Proof.
5. The evidence was conclusive that plaintiff's assignors were the general owners of the property, the defendants resting their right to possession on a special property in the nature of a lien for advances. The court, at the outset of his charge, instructed the jury, in substance, that, as the property was in the possession of the defendants when the action was commenced, the presumption was that their possession was rightful, and hence that the burden was on the plaintiff to prove that he was entitled to the possession at the time of the commencement of the action. To this the plaintiff excepted, without specifying wherein it was erroneous, or asking for any more specific instruction. The objections now urged to the charge are that, in view of the state of the evidence, it amounted to an instruction that the burden was on the plaintiff to prove that the defendants had no lien for advances, and that it ignored the fact that, even if the defendants had a lien at the time the action was commenced, the plaintiff would nevertheless be entitled to recover if the lien had been discharged before trial. Held that, if plaintiff thought that the instruction was liable to mislead the jury, he ought, especially in view of the manner in which the case was tried, to have called the attention of the court specifically to the grounds of his objection.
A. B Jackson, for appellant.
Hendrix & Merritt and Carman N. Smith, for respondents.
This action was brought by the plaintiff, as assignee or receiver of Weitzner, Gruenberg & Co., insolvents, to recover the possession of a number of cases or boxes of merchandise.
The complaint alleged, generally, that he was the owner of, and entitled to the immediate possession of, the property (describing it), and that the possession thereof was unlawfully detained from him by the defendants. The answer admitted that defendants were in possession of the property, but denied that plaintiff was the owner or entitled to the possession of any of it, or that they had ever wrongfully or unlawfully detained it from the plaintiff. After the property had been taken by the sheriff on the writ or requisition, the defendants gave a bond and retained possession of the property during the pendency of the action. Upon the trial the defendants admitted that they had received the property from Weitzner, Gruenberg & Co., but introduced evidence tending to prove that it had been consigned to them by that firm for sale on commission, under an agreement that defendants were to have a lien upon it for any advances made on it, and that they had made such advances, which remained unpaid. This evidence was admitted against the objection of the plaintiff that it was inadmissible under the pleadings. The verdict was:
"We, the jury in the above entitled action, find for the defendants upon all the issues in this action, and do hereby assess their damages for the taking and withholding the goods and chattels in controversy at the sum of one dollar."
Objection is now made to this verdict that it does not assess or find the amount of the defendants' lien or special property on the goods.
1. We shall take up these questions of pleading and practice in their order. We shall not take the time to go into any general discussion of the rules of pleading in replevin at common law or in an action of claim and delivery under the statute, but content ourselves with stating the following rules, which are settled in this state in accordance, as we think, with the general current of the decisions in other code states.
In an action of claim and delivery, the plaintiff is not required to plead specially the source of his title, or the particular facts which entitle him to the possession of the property. He may allege, generally, that he is the owner and entitled to the immediate possession, and under that prove any right of property, general or special, that entitles him to such possession. In such an action the term "owner" does not necessarily import general or absolute ownership. The action being one for the possession, it is what may be called the "possessory title" that is important. Miller v. Adamson, 45 Minn. 99, 47 N.W. 452. Where the plaintiff merely alleges that he is the owner, without pleading the source of his title, the defendant, under a general denial, may prove any facts which tend to rebut the allegations of the complaint, -- that is, which tend to show that the plaintiff is not entitled to the possession; as, for example, that the "possessory title," and consequently the right of possession, is in the defendant himself or in a third party. This proposition would seem to follow necessarily and logically from the first. This has been uniformly accepted or recognized by this court, by both decision and dictum, as the correct rule. See McClelland v. Nichols, 24 Minn. 176; Furman v. Tenny, 28 Minn. 77, 9 N.W. 172; Johnson v. Oswald, 38 Minn. 550, 38 N.W. 630; King v. La Crosse, 42 Minn. 488, 44 N.W. 517; Mullen v. Noonan, 44 Minn. 541, 47 N.W. 164; Bassett v. Haren, 61 Minn. 346, 63 N.W. 713; Miller v. Adamson, supra; Aultman & Taylor Co. v. O'Dowd, 73 Minn. 58, 75 N.W. 756.
2. The provisions of G.S. 1894, § 5383, dispose of the point that the verdict should have found the value of defendants' special property. The facts of this case do not bring it within either of the cases where the statute requires the value of the property to be assessed. The verdict was in favor of the party having possession of the property, in which case the statute expressly provides the value thereof shall not be found. This applies whether the property of the party in whose favor the verdict is, is general or special. The value of the property (which in the case of a special property is the value of the special interest) is only required to be found where the party in whose favor the verdict is, is entitled to an alternative judgment for the value in case the property itself cannot be returned. Upon the facts of the present case, the defendants are entitled only to judgment for the possession. The amount or value of their special property is immaterial, because they are entitled to the possession of the whole property until their lien is fully paid. Leonard v. Maginnis, 34 Minn. 506, 26 N.W. 733.
3. Plaintiff's next contention is that the verdict was not justified by the evidence.
The defendants were doing what may be termed a "merchandise commission business," consisting principally of selling on commission stocks of goods, generally what are called "made-up stocks," consigned to them by others. The insolvents Weitzner, Gruenberg & Co., were carrying on a general merchandise business in Minneapolis. The claim of the plaintiff was that Weitzner, Gruenberg & Co. transferred or consigned these goods to the defendants with the intent and for the purpose of defrauding their creditors, and that the defendants were parties to, or at least cognizant of, the fraud. Or, to be more explicit, his claim is that Weitzner Gruenberg & Co. were engaged in the fraudulent scheme of buying large quantities of goods on credit, and then running them...
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