Deitsch v. Wiggins

• Citation: 1 Colo. 299
• Case Date: February 01, 1871
• Court: Supreme Court of Colorado

1 Colo. 299

DEITSCH
v.
WIGGINS et al.

Supreme Court of Colorado

February, 1871

[1 Colo. 300]

Appeal from District Court, Gilpin County.

TRESPASS by the vendees of merchandise against creditors of the vendor, who had taken the goods in attachment and the sheriff who levied the writ.

The pleadings are sufficiently stated in the opinion of the court.

P. M. Martin testified, that the goods were taken by the sheriff from the possession of appellee's agent, and that he invoiced the goods by the direction of the sheriff, at cost and freight added; that the invoice price was $2,315.90; that the goods might be sold for this amount with good management; but that he did not think them worth more than seventy-five cents on the dollar of the invoice price; that he would not give more than that amount; but that it would not be difficult to get cost for them, that the cash valuation is the amount added upon the invoice.

Charles C. Post testified, that he was present when the goods were taken away, and saw the sheriff and appellant there, that appellant was engaged in selecting the goods from the sheleves as they were being packed.

Defendants below offered to prove, by Charles E. Sherman, that the goods taken were part of the stock of merchandise of Oliver S. Buell, who did business under the name and style of O. S. Buell & Co.; that the witness, Charles E. Sherman, was the clerk of said O. S. Buell for the space of about six months prior to the 6th day of May, 1867; that for two or three months prior to the 2d or 6th day of May, 1867, the said Buell was absent from the said territory of Colorado; that during the absence of the said Buell, said Sherman was the clerk of said Buell, to carry on the regular business of said Buell in Central City, which was retailing clothing and merchandise; that the [1 Colo. 301] said Sherman had no right or authority whatever to sell or dispose of the entire stock of goods of said Buell, but was only authorized to sell in the regular course of business; that on the 29th day of April, 1867, John Q. Hart, agent of the plaintiffs, well knowing that the said Sherman was not authorized to sell the entire stock of goods, fraudulently agreed and combined and confederated with the said Sherman to make a pretended purchase of the entire stock of goods, for the purpose of bindering, delaying and defrauding the defendants, Moritz Deitsch, Isidor Deitsch and Jonas Deitsch, defendants herein, and other creditors; that the said Hart well knew that the said Jonas Deitsch, Moritz Deitsch and Isidor Deitsch were creditors of said Buell to a large amount, and that such sale was designed by him to cheat, hinder and defraud said defendants; that said stock of goods was worth $10,000, but was sold to said Hart, Wiggins & Co., for a grossly inadequate sum; that whatever money was paid, if any, or securities given, were so concealed, smuggled and managed as to protect and place it beyond the reach of the defendants and for the benefit of the said Buell, Hart, Wiggins & Co., John Q. Hart and said Sherman, to which evidence plaintiffs objected, and the court sustained the objection.

Defendants then offered the affidavit, bond and sheriff's return in the suit of Deitsch & Bros. against Buell, to which plaintiffs objected, and the objection was sustained.

The court gave the following instructions to the jury at the request of the plaintiffs below:

The court is asked to instruct the jury, that the defendants are not entitled to have the goods and chattels taken by them appraised or valued at the wholesale price, but the jury may find the goods and chattels of the value they would bring in market at retail.

If the jury believe, from the evidence in the case, that before the commencement of this suit the plaintiffs were possessed of a quantity of personal property, and the defendants, William Z. Cozens and Moritz Deitsch, took the said goods and chattels, and carried the same away [1 Colo. 302] without the consent of the plaintiffs, such acts were acts of trespass.

The court instructs the jury, that, when the goods of another are taken without his consent, and against his will, and it is shown that the taking was wrongful, the highest market price or value of the goods so taken, at the time of the taking, will be allowed to the owner.

If the jury believe, from the evidence, that, at the time defendant, Cozens, was packing up the goods and chattels mentioned in the declaration, Moritz Deitsch was there, assisting in selecting the same, without the consent of plaintiffs, then he was guilty of trespass, and, if he had the consent of plaintiffs, it is incumbent on the defendant Deitsch to prove such consent.

The court instructs the jury, that if they believe, from the evidence, that the goods mentioned in the declaration were in the possession of the plaintiffs at the time of the taking of the goods by the defendants, or either of them, if said goods were taken by them, or either of them, the law presumes they, the said plaintiffs, were the owners of said goods, and it is incumbent on the defendants to rebut that presumption by proof that they were not the goods of the plaintiffs, and if said defendants have failed to make such proof, they should find for the plaintiffs such sum as, by the evidence, such goods were shown to be worth.

On behalf of defendants the court gave the following instruction:

To enable the plaintiffs to recover against the defendants in this action, the plaintiffs must show, by evidence to the jury, that the said plaintiffs, at the time of the taking, were rightfully in possession or entitled to the possession of the property alleged to have been taken as against the defendants.

And the said defendants also moved the court to give the jury the following instructions:

Unless the jury believe, from the evidence, that defendant, Moritz Deitsch, was present, in some way aiding, counseling and abetting the taking of the goods in question, they will find defendant, Moritz Deitsch, not guilty. [1 Colo. 303]

The jury are instructed by the...