Gottlieb v. Hartman

• Decision Date: 01 February 1876
• Citation: 3 Colo. 53
• Parties: GOTTLIEB v. HARTMAN.
• Court: Colorado Supreme Court

3 Colo. 53

GOTTLIEB v. HARTMAN.

Supreme Court of Colorado

February, 1876

Appeal from the District Court of Arapahoe County.

UPON the trial of this cause in the district court, the plaintiff Maggie Hartman, testified, that about the 1st of December 1873, she deposited with one Morrison, for safe-keeping certain diamond rings and other personal property of value that Morrison was keeping a restaurant in Denver, and that she was staying at his house; that she never saw Morrison after the 4th of December, 1873, and had not seen the property after she gave it into his keeping; that Morrison disappeared about the 4th of December, 1873, and upon opening his safe, the plaintiff and one Dugan, who was an employee of Morrison, found a pawn ticket, signed by the defendant Gottlieb, purporting to be for the pledge of four diamond cluster rings and a lady's gold watch and chain. The plaintiff further testified that she procured a search warrant, placed it in the hands of William A. Smith, a constable of the county, and directed 'him to make search at Mr. Gottlieb's, and he did so.' Smith testified to having visited defendant's store with the search warrant, that he searched the premises, but could not find the property. The witness also testified as follows: 'When I got through and could not find them, I demanded them of him; I asked him where they were; he said, 'I don't know-I did have them;' I told him there would be trouble; he said, 'if you can find them, why you find them.' I think I went back next day and demanded them of him again; he said he did not have, hadn't got them, at least. This was on the same day the writ was issued-the 6th of December.'

The witness Dugan, after testifying to his being in the employ of Morrison during November and December, stated: 'When I went there the large diamond ring, with twelve diamonds and emerald, was up for raffle; Morrison showed me the ring; it was put up for raffle before I went there to work; I think in about two weeks after I went there the raffle was abandoned; Morrison had a safe, to which he and myself had access; the ring was kept in the safe, in the little iron box inside the safe; I supposed the ring was given back to Mrs. Hartman after the raffle was abandoned; that was my understanding.' Thereupon the plaintiff's counsel asked the witness the following question, to which the defendant objected, because the same was incompetent, to wit: 'What reason have you to suppose it was given back?' but the court overruled the objection; defendant excepted. Witness answered as follows: 'The ring was taken out of the safe, one reason, and my impression is Morrison told me so; I know the raffle was abandoned; I never saw any other ring in the safe; the defendant saw the ring while it was in the possession of Morrison to raffle; I showed the ring to him; another gentleman came in and wanted to see it, and while he was there Morrison came in, and they had some conversation about it; Morrison told him he could buy the ring.' Defendant's counsel here moved to strike out the answer of the witness in regard to the conversation, because the same was immaterial, but the court permitted the same to stand, to which the defendant excepted.'

This witness was also permitted to testify to conversations had with Gottlieb subsequent to the bringing of the action, which was objected to by defendant as incompetent, immaterial, irrelevant and improper.

It is deemed unnecessary to specify more particularly the evidence and the many objections made by the defendant to its character and materiality; many of the material matters are discussed in the opinion of the court. The plaintiff had judgment for $1,325, from which the defendant prosecuted this appeal.

The instructions mentioned in the opinion of the court upon which errors were assigned, were as follows:

'If plaintiff was the owner of the jewelry in question, and deposited the same with Morrison for safe-keeping merely, and without other and further authority, and Morrison thereupon pledged or pawned the same to the defendant, intending, at the time of such pledge, to convert the proceeds to his own use, such pledge amounted to a larceny by Morrison; even though the defendant was, in truth, ignorant of Morrison's want of authority in the premises, and dealt with him in good faith, defendant nevertheless obtained no title by such pledge; the plaintiff's right still continues, and so far as this point is concerned, plaintiff may recover.'

'If at the time of such alleged service of the search warrant, if it occurred, defendant made any declaration to Smith as to the whereabouts of the property, or his knowledge thereof, you may consider all that occurred in determining whether a demand of the property, if one had been made, would or would not have been availing; and if you conclude, from the consideration of all the evidence, that the defendant would not have surrendered the property to plaintiff, if she had demanded it, then the plaintiff may, so far as this point of the case is concerned, recover, notwithstanding you should believe, from the evidence, that no demand at all was made.'

In the supreme court the appellant contended that the record did not show that he had ever received the chattels declared upon; that they were not shown to have been in his possession at the time of the action brought, and that if these facts did sufficiently appear, yet there was not evidence of conversion by refusal to surrender upon demand, or otherwise; that Smith, being an officer, his warrant was his authority; all the conversation had between Smith and the plaintiff was in reference to action under the warrant; that there was no evidence that he acted in any other capacity; no evidence that Gottlieb knew Smith or thought of him in any other capacity. If Smith was the plaintiff's agent for the purpose of making a demand, such agency should have been first distinctly proved; and, secondly, the knowledge of it should have been brought home to Gottlieb. A duty was to be raised upon the part of a third person; hence it was necessary that there should have been a previous authority; an adoption ex post facto of Smith's action was not sufficient. That a demand and refusal were necessary in all cases where the defendant became lawfully possessed of the goods, unless the plaintiff could prove a distinct actual conversion. That when a party, lawfully coming into possession of the property of another, parts with the possession previous to demand, the remedy is case or assumpsit, not trover.

That trover could be maintained only on the ground that the defendant was a wrong-doer; that a defendant should not be found guilty upon inference, and that there should be a preponderance of evidence against him to find a verdict of guilty; that the title to the chattels is not necessarily involved in an action of trover, but that damages for the wrongful deprivation of possession is the gist of the action; that the nature of the action impliedly admits some title in the defendant.

In concluding the argument, counsel for appellant used the following language:

'The maxims of the law which we have suggested as applicable to this case are not mere idle phrases, to be waived or adopted at pleasure. They are established; they mean something; they are binding as any positive enactment of the legislature; they are discussed to a greater or less extent in nearly all the decisions in this class of cases, and we think we cannot conclude our argument in a more satisfactory way than by bringing these maxims together, with a statement of the case:

'1st. An owner may not be deprived of his property without his consent.

'2d. Possession of personal property is the criterion of title.

'3d. That he who, without intentional fraud, has enabled any person to do an act which must be injurious to himself, or to another innocent party, shall himself suffer the injury rather than the innocent party who had placed confidence in him.

'4th. A positive tortious act is necessary to support trover.

'Mrs Hartman gave her chattels to Morrison for safe-keeping. She retained the ownership with right of possession. Before she could sue Morrison in trover she would have to demand the goods...