Dodson v. Cooper

• Decision Date: 08 October 1887
• Citation: 15 P. 200,37 Kan. 346
• Parties: H. T. DODSON v. R. H. COOPER
• Court: Kansas Supreme Court

15 P. 200

37 Kan. 346

H. T. DODSON v. R. H. COOPER

Supreme Court of Kansas

October 8, 1887

Error from Butler District Court.

ON December 18, 1884, R. H. Cooper brought his action against H T. Dodson for ten thousand dollars damages for the wrongful conversion of a general stock of merchandise, consisting of hats, caps, boots, shoes, carpets, notions, etc., of the value of six thousand dollars, which the plaintiff alleged he was the owner of on November 27, 1884, at the time the same was seized and taken possession of by the defendant. The answer alleged, first, a general denial; second, that at the time of the alleged conversion Dodson was the sheriff of Butler county, and that on November 27, 1884, certain writs of attachment came into his hands in favor of the following attaching creditors of one Horace Blakely, to wit: Bates Reed & Cooley, Lockwood, Englehart & Co., H. T Simmons & Morse, and J. V. Farwell & Co., and that the said Dodson levied the same upon the goods, wares and merchandise described in plaintiff's petition, all of which was the property of said Horace Blakely. The answer further alleged that R. H. Cooper and Blakely entered into a conspiracy to make a sham and pretended sale of the goods to Cooper to defeat the claims of creditors, and especially the claims of the attaching creditors above mentioned. To this a reply containing a general denial was filed. Subsequently an amendment to the second cause of defense was made. To this a demurrer was filed, which the court sustained. Trial at the September Term, 1885. The jury returned a general verdict for the plaintiff, and assessed the amount of his recovery at $ 5,336.18. The jury also made the following special findings of fact:

"1. Was the sale of the stock of goods by Blakely to Cooper made with the intent on the part of said Blakely of defrauding his creditors, or hindering or delaying them in the collection of their debts? Ans: Yes, in our judgment, he did.

"2. If the above question is answered yes, then did Cooper have actual notice of such intention on the part of Blakely? A. No.

"3. What time of the day or night was the sale consummated? A. Night of November 25, 1884, between the hours of nine and twelve o'clock.

"4. Were the facts and circumstances surrounding the sale such as to put a prudent man upon inquiry as to the object Blakely had in making the sale? A. No.

"5. On what day was the trade finally consummated? A. November 25, 1884."

"9. Did Cooper, before buying the goods from Blakely, make inquiry of any person or persons other than Blakely to ascertain whether Blakely was making the sale to defraud delay or defeat his creditors? A. No.

"10. Was an inventory of the stock of goods taken by Cooper before the sale was made? A. No.

"11. Was the sale made in the usual and ordinary course of business? A. Not in the majority of cases.

"12. Was the sale made in an unusual manner, and at an unusual hour? A. It was made in an unusual manner, but not at an unusual hour.

"13. At the time of the levy of the respective attachments of Bates, Reed & Cooley, and Lockwood, Englehart & Co., by the defendant, had the bond for a deed which has been offered in evidence been delivered to Horace Blakely? A. To the best of our recollection, it had been.

"14. At the time the attachments were levied on the stock, on November 27, 1884, had Cooper given Blakely deeds for the land or town property which was to be part of the consideration? A. To the best of our recollection, he had not.

"15. At the time of the trade, what was the amount of the mortgage on the northeast quarter of section thirty-five, township twenty-five, range six, in Butler county, Kansas? A. Three hundred dollars.

"16. What was the value of the interest in said land which Blakely received from said Cooper? A. Six hundred and sixty dollars.

"17. What was the amount of the mortgage on southwest quarter section ten, township twenty-three, range seven, at the time of the trade between Cooper and Blakely? A. Seven hundred dollars.

"18. What was the market value of the house and lot in El Dorado, Kansas, which Blakely received from Cooper in said trade? A. Five hundred dollars.

"19. Did Cooper pay Blakely any money at the time of the trade? A. He did, in the shape of a bank check.

"20. If last question is answered yes, state when said payment was made, and how much was received by Blakely from Cooper? A. On the night of November 25th, 1884, two thousand dollars, check. He also received a note of five hundred dollars said night.

"21. What was the market value of the southwest quarter section ten, township twenty-three, range seven east, at the time of the trade between Cooper and Blakely? A. Eight hundred dollars."

The defendant filed a motion for a new trial, which was overruled, and judgment was entered upon the verdict in favor of the plaintiff and against the defendant for $ 5,336.18, together with all the costs. The defendant excepted, and brings the case here.

Judgment reversed, and new trial ordered.

Smith & Solomon, for plaintiff in error; Hamilton & Cubbison, and E. N. Smith, of counsel.

C. A. Leland, and L. Knowles, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On November 27, 1884, writs of attachment in favor of certain creditors of Horace Blakely were placed in the hands of H. T. Dodson, sheriff of Butler county, for service. Upon that day he levied the writs on a general stock of merchandise, as the property of Blakely, but claimed to have been purchased by R. H. Cooper, in good faith and for a valuable consideration, prior to the attachments. Dodson, for the attaching creditors, contended that Cooper and Blakely entered into a conspiracy to make a pretended sale of the goods from Blakely to Cooper to defraud the creditors of Blakely. Subsequently Dodson, as sheriff, sold the stock of goods as the property of Blakely, and Cooper brought suit to recover the value thereof, alleging that they had been wrongfully seized and converted by Dodson. Judgment was rendered in favor of Cooper for $ 5,336.18 and costs. Upon the trial, Dodson offered to prove that Cooper bought all the goods levied upon, at the sheriff's sale for twenty-three hundred dollars, excepting those taken to satisfy the claim of Bates, Reed & Cooley, valued at nine hundred and fifty dollars and eighteen cents. This evidence was rejected. The court instructed the jury that if they found the issues for Cooper, they should assess his damages at the amount of the value of the goods at the time they were taken by Dodson.

Complaint is made of the rejection of the evidence offered, and to the giving of the instruction as to the measure of damages. We think the complaint well made. The instruction given would not have been prejudicial if Cooper had not bought back the property in controversy. (Simpson v. Alexander, 35 Kan. 225, 11 P. 171.) But a different rule applies in such a case as this, where the owner gets back his property after the wrongful taking or conversion. Field says:

In an action for the conversion of property, the fact that the property has been returned to plaintiff may always be shown in mitigation of damages; and, generally, where there is a wrongful taking and the property has been redelivered to the owner or party entitled to possession of the same, the measure of damages is the expenses necessarily incurred by reason of the tort, the value of the time required to recover it, the value of the use of the property, and the amount of the injury thereto, if any." (Law of Damages, § 110.)

Sutherland says:

"Wherever the owner gets back his property after any wrongful taking or detention, the expense of procuring its return is the measure of damages, in the absence of special damages,...