Deitsch v. Wiggins

• Decision Date: 01 February 1871
• Citation: 1 Colo. 299
• Parties: DEITSCH v. WIGGINS et al.
• Court: Colorado Supreme Court

1 Colo. 299

DEITSCH v. WIGGINS et al.

Supreme Court of Colorado

February, 1871

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 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 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.

The jury are instructed by the court, that, to enable plaintiffs to recover in this action, plaintiffs must, at the time of such taking, have had rightful possession of the premises in question.

If the jury believe, from the evidence, that Moritz Deitsch was present at the time of the alleged taking of the goods in question, but that he neither counseled nor took any part in said taking, they will find defendant, Moritz Deitsch, not guilty.

But the court refused to give said instructions, and defendants excepted.

Messrs. ROYLE & BUTLER, for appellant.

Messrs. JOHNSON & TELLER, for appellees.

BELFORD J.

This was an action of trespass, de bonis asportatis, commenced by appellees against William Z. Cozens and Moritz Deitsch, Isidor Deitsch and Jonas Deitsch in the district court of Gilpin county, in which the appellees recovered a judgment against said William Z. Cozens and Moritz Deitsch for the sum of $2,315.90, and from this judgment Deitsch appeals. The declaration alleged that the defendants took and carried away certain goods and chattels in the declaration mentioned, on the 4th day of May, 1867, of the value of $2,315.90.

The defendants jointly plead the general issue, and also a special plea alleging that the goods and chattels in the declaration mentioned were the goods and chattels of O. S Buell & Co., on the said 4th day of May, 1867, and that, on the 3d day of May, 1867, a writ of attachment was issued out of the district court of Gilpin county in favor of the firm of Deitsch & Bro., directed to the sheriff of said Gilpin county, commanding him to attach so much of the estate, real and personal, of the said O. S. Buell & Co., as should be of sufficient value to satisfy the sum of $1,478.90, and costs; that, on the said 3d day of May, 1867, the said William Z. Cozens was sheriff of Gilpin county; that, on said day, the writ of attachment was delivered to said Cozens to execute, and that, on the 4th day of May, 1867, he levied upon the goods and chattels mentioned in the declaration as the property of the said O. S. Buell & Co., by virtue of said writ of attachment, which were the supposed trespasses complained of. Appellees filed several replications, denying that the goods and chattels mentioned were the property of O. S. Buell & Co., on the 4th day of May, 1867; also denying that the writ was issued as alleged in said plea, and that Cozens levied upon said goods under and by virtue of such writ, and that Cozens was sheriff of Gilpin county. The above is a brief and, we believe, a correct abstract of the pleadings. During the progress of the trial, the defendants offered in evidence a certain affidavit, bond and writ of attachment, and...