Herzberg v. Sachse

• Court: Maryland Supreme Court
• Writing for the Court: Irving, J., delivered the opinion of the court.
• Citation: Herzberg v. Sachse, 60 Md. 426 (Md. 1883)
• Decision Date: 21 June 1883
• Parties: SELIGMAN HERZBERG and Marx New v. HENRY SACHSE and Caroline Sachse, His Wife.

60 Md. 426

SELIGMAN HERZBERG and Marx New v. HENRY SACHSE and Caroline Sachse, His Wife.

Court of Appeals of Maryland

June 21, 1883

Appeal from the Baltimore City Court.

The case is stated in the opinion of the court.

First and Second Exceptions stated in the opinion of the court.

Third Exception.--The plaintiffs offered the following prayer:

That if the jury find that the plaintiff, in behalf of his wife Caroline, and the defendant, Seligman Herzberg, about the 1st of June, 1880, exchanged the mare in question, and forty dollars cash money, the property and money of said Caroline Sachse, for a mare, the property of said Herzberg, and by the terms of the exchange Herzberg warranted his mare sound gentle and suitable for the purpose of a private family, and to go in single or double harness, with the right to the plaintiffs to return her if, upon trial, she did not come up to the warranty, and that plaintiffs returned the mare in controversy; and shall further find that the mare, upon trial, was not as represented by the warranty, and was, in a reasonable time after trial, returned to Herzberg, and that at the time of the execution of the writ of replevin herein the mare in question, was in the possession of Max New, one of the defendants, for sale upon commission, as the agent of Herzberg, and that the said sum of $40 has not been paid the plaintiffs, then their verdict must be for the plaintiffs for the property replevied, with damages against the said Seligman Herzberg, in such amount as the jury may find will compensate the plaintiffs for the wrong and injury done, by reason of his failure to comply with the terms of said exchange.

And the defendant, Herzberg, offered the two following prayers:

1. That there is no evidence from which the jury can find a verdict against him in this case.

2. If the jury find from the evidence, that the mare in question at the time it was replevied, was in possession of the defendant, New, not as the bailee or consignee of the defendant, Herzberg, but the defendant, New, was the actual owner of the said mare, then the plaintiffs cannot recover against the defendant, Herzberg.

And the defendant, New, offered the following prayer:

1. That if the jury find that the plaintiffs Sachse, and wife, entered into a contract with Herzberg for the exchange or trade for the mare mentioned in the declaration in this cause, and that said mare was in good faith, and for a valuable consideration, purchased by said New before the issuing of the writ of replevin in this cause, and that said New had no knowledge of the contract between plaintiffs and Herzberg, then their verdict should be for the defendant, New, for the return of said mare, although they may find that said mare was obtained by said Herzberg under a warranty, that the horse delivered to said plaintiffs, was not what he represented her to be at the time of the trade.

And the defendants offered the four following prayers:

1. If the jury find from the evidence in this case, that the plaintiffs traded the mare which was replevied from the defendant, New, with the defendant, Herzberg, for a bay mare and $40 boot, and delivered the replevied mare, and paid said forty dollars, and took the mare, which he obtained from said Herzberg's home, then, in order to recover in this action, the plaintiffs must prove by satisfactory evidence, that said Herzberg induced plaintiffs to make said trade by fraudulent misrepresentations, as to the qualities of the mare he was giving them in exchange, and unless the jury shall find such fraudulent misrepresentations were made, the plaintiffs are not entitled to recover.

2. Even should the jury find from the evidence, that the defendant, Herzberg, obtained possession of the replevied mare by means of fraudulent representations made to the plaintiffs, yet if they find that the defendant, New, obtained said mare from said Herzberg in a bona fide trade, without knowing how he, the said Herzberg, obtained the said mare from the plaintiffs, then the plaintiffs cannot recover.

3. If the jury find from the evidence, that the mare replevied was at the time the said trade was made between the plaintiffs and the said Herzberg, the property of the plaintiff, Caroline Sachse, then the plaintiffs, under the pleadings in this case cannot recover.

4. Even should the jury find there was no sale or exchange between defendants, Herzberg and New, but that the mare replevied was simply in the hands of the said New to be sold on commission for said Herzberg, yet their verdict must be for the defendants unless they believe that at the time Herzberg made the trade with Sachse he guaranteed the mare he gave him in exchange to be a safe, gentle mare, and a good driver, and did not tell him she was a green mare, not thoroughly broke, and that he must not take his family behind her for several trials, and further found that the said mare was not a safe, gentle mare, and a good driver, and the plaintiffs returned her in a reasonable time after finding out said facts.

And the court (Garey, J.,) granted the plaintiffs' prayer, and rejected the

prayers of the defendant, Herzberg, and the third prayer of the defendants, and granted the other prayers of the defendants, as also the prayer of the defendant, New. The defendants excepted.

The jury rendered separate verdicts against each defendant in favor of the plaintiffs, and judgment was entered accordingly. The defendants appealed.

The cause was argued before Miller, Stone, Robinson and Irving, JJ.

Richard Hamilton, for the appellants.

E. Swinney, for the appellee, Caroline Sachse.

Irving J., delivered the opinion of the court.

This was an action of replevin brought in the name of husband and wife jointly to recover property, alleged in the declaration to be the property of the wife. The defendants, who are appellants, were sued jointly and severed in pleading. The defendant, Herzberg, pleaded non cepit and property in his co-defendant, New; who pleaded non cepit and property not in plaintiffs but in himself. The trial resulted in two verdicts: one against New for the property, and one against Herzberg for the property mentioned in the writ and $40 damages. Judgment was entered accordingly, and this appeal taken by both defendants.

At the trial the plaintiffs offered evidence tending to show, that the plaintiff, Caroline Sachse, owned a mare, which her husband, as her agent, traded with defendant Herzberg, paying Herzberg $40 of the wife's money in the exchange; that when the plaintiff, Henry Sachse, tried the mare, Herzberg proposed to exchange, she balked, and that Herzberg said she had not been driven for some days, and on the assurance that she was sound, gentle, and would work single or double, the exchange was made and the $40 boot paid. This exchange was made on the 31st of May, 1880. Finding the mare "always balked in driving, and was unfit for use as a driving mare," about two weeks after the exchange Henry Sachse, having heard that the mare he traded with Herzberg was in the possession of the defendant, New, visited him, and was told by him that he had her in his possession to sell on commission for Herzberg. Thereupon Henry Sachse tendered back to Herzberg the mare which he obtained from him. Herzberg having refused to receive her, Sachse left her hitched at Herzberg's gate, and sued out replevin against both Herzberg and New. Having rested their case, the appellants, (who were defendants,) without offering any testimony in reply, offered a prayer asking the court to instruct the jury, "that under the pleadings and evidence in this case the plaintiffs cannot recover." This prayer was rejected, and the first exception is to that ruling.

The appellants mainly rely upon two grounds in support of this prayer at this stage of the case. 1. Because the suit is brought in the names of the husband and wife jointly, whereas it is contended the wife should have sued by her next friend. 2. Because Herzberg has been improperly joined as a defendant, it appearing he was not in possession,...