Doty v. Steinberg

• Citation: 25 Mo.App. 328
• Parties: CHARLES DOTY ET AL., Respondents, v. M. J. STEINBERG, Appellant.
• Decision Date: 05 April 1887
• Court: Court of Appeal of Missouri (US)

25 Mo.App. 328

CHARLES DOTY ET AL., Respondents, v. M. J. STEINBERG, Appellant.

Court of Appeals of Missouri, St. Louis.

April 5, 1887

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed and remanded.

DYER LEE & ELLIS, for the appellant, cited: Koeltz v Blackman, 46 Mo. 320; Smith v. Dekes, 5 Minn 373; Railroad v. Fulney, 17 Gratt. 366; Hodapp v. Sharp, 40 Cal. 69; Sutherland on Damages, 814.

JOHN FLOURNOY, for the respondents.

OPINION

THOMPSON J.

This was an action for damages for the conversion of six sea otter skins, claimed in the petition to be " of unusually large size and quality." The damages claimed in the petition are one thousand eight hundred dollars. The answer admits that six sea otter skins were delivered by the plaintiff, Mrs. Doty, to the defendant in the year 1877, as charged in her petition, but sets up that they were known as " sea otter pup skins" ; that they were delivered by the plaintiff to the defendant for the purpose of having the defendant send them to New York to ascertain what they were worth; that he did send them to New York for this purpose; that that they were returned to him with the information that they were not salable; that, shortly after they were returned, the defendant's store, in which they were kept, was destroyed by fire without fault or negligence on his part; that the skins were injured by the fire; that one of them was either wholly destroyed or damaged to such an extent as to be rendered worthless; that all of them were somewhat damaged, but that the defendant caused them to be renovated and put in as good condition as possible, and in the year 1883 delivered two of them to the plaintiff; and that the other three are in the defendant's possession, and he has at all times been ready, and now is ready, to deliver them to the plaintiff upon payment of reasonable charges thereon. This new matter was put in issue by a reply. A trial before a jury resulted in a verdict for $1,954.80. On motion for a new trial, the court, as the condition of allowing the verdict to stand, required the plaintiff to remit one thousand dollars, and entered judgment for the residue.

The trial occupied parts of two days. The evidence was long and conflicting. A detailed statement of it does not seem necessary for our decision. If the plaintiff's evidence supplemented by that of the defendant, as to dates, was true, and the jury must have believed it, she delivered to the defendant, not in 1877, but in the latter part of the year, 1876, six large sea otter skins, four of which were about five feet long and about three feet wide, and two of which were somewhat smaller, which she had received as a present from her son, who had obtained them while cruising among the Aleutian Islands; that at least four of these skins were what is known in the trade as " prime skins" ; that is, skins of the grown animal, and the other two, at least, " cub skins," or skins of the half grown animal; that these prime skins were worth in London, the nearest general market for such furs, perhaps one hundred and fifty dollars each; that the defendant kept these skins for nearly a year, namely, until November, 1877, when his store in which they were kept was destroyed by a fire; that thereafter he pretended that the skins had been destroyed in the fire, and in response to repeated applications to find them and deliver them to the plaintiff, excused delivery with various pretexts, until some time in 1883, when he sent to the plaintiff a small sea otter pup skin, which the plaintiff at once informed him was not one of the skins which she had delivered to him; and, finally, that, at the trial, he brought three other sea otter pup skins into court and pretended that they were what remained of the skins which the plaintiff had delivered to him. The plaintiff's evidence showed that sea otter pup skins were worth, on an average, in New York, about ten dollars apiece, and that prime sea otter skins, from four and a half to six feet long, and from three to three and a half feet broad, very heavy, and with the long silver hairs, well and thickly developed, were worth in New York and London, from 1876 to 1886, within from one hundred and fifty to two hundred and fifty dollars each, although exceptionally fine skins have been sold in London as high as four hundred and five hundred dollars each; that skins of the value above stated were neither cubs nor pups, but prime skins. The plaintiff's testimony also tended to show that, after the fire, the defendant had delivered the six skins to a furrier in St. Louis, named Gosselling, who found them to be in good condition, untouched and uninjured, either by fire or by water, and who dressed them and returned them to the defendant at his request. This furrier testified that the skins were four and a half or five feet long and about a foot and a half wide, and that they were not pup skins, though the witness did not see any white hairs in them. It should be added that the testimony as to the width of the skins being no more than a foot and a half, was contrary to all the evidence in the case, touching the dimensions of such skins. It should be added further that the evidence showed that prime sea otter skins are distinguished by long silver hairs, extending above the fur; that very few cub skins exhibit these silver hairs, and that pup skins do not have them. It ought further to be added, that, after the trial, this witness, Gosselling, made an affidavit, in support of the defendant's motion for a new trial, to the effect that the skins which were exhibited in court by the defendant were some of the six skins which he dressed. On the other hand the defendant's evidence was to the effect that he had never had such skins in his possession before, and knew nothing about their value; that when they were delivered to him he shipped them, with other articles, to a furrier in New York; that, on the first of December, 1876, he wrote to this furrier a business letter, referring to this matter and to several other matters, which letter was put in evidence; that, in this letter he advised his correspondent...