Howe v. Cochran
| Decision Date | 27 November 1891 |
| Citation | 50 N.W. 368,47 Minn. 403 |
| Parties | Lucy M. Howe v. Thomas Cochran and others |
| Court | Minnesota Supreme Court |
A motion for a reargument of this case was denied December 8 1891.
One Bennett, in October, 1889, executed to plaintiff a chattel mortgage for the purchase-money of household furniture situated in a house leased to Bennett by defendants as agents for the owner. In November, 1889, Bennett having abandoned the premises, the defendants took possession and removed the furniture, and, on plaintiff's demand, delivered it to her. Plaintiff brought this action in the district court for Ramsey county, to recover for injuries to the furniture caused by the defendants' negligent handling of it. At the trial, before Kelly, J., it appeared that under the conditions of the mortgage, plaintiff was entitled to possession at the time of Bennett's abandonment. One Kirkland, a witness for plaintiff, produced and verified a list of the furniture made by him at the time of the sale and mortgage. This list was offered and received in evidence, the defendants objecting to it as incompetent, and duly excepting. Plaintiff had a verdict of $ 214.07, a new trial was refused, and the defendants appealed.
Order affirmed.
McCafferty & Noyes, for appellants.
Brown & Schrader, for respondent.
The case seems to have been tried on the theory that defendants had the right to remove the property in question, and that the plaintiff's right to recover rested on the fact that they had injured it through want of care in the removal. Whether they had so injured it at all was a litigated question, to be determined by the jury upon the evidence. It was therefore erroneous for the court to charge the jury that plaintiff was entitled to recover, at any rate, nominal damages. Whether there was a cause of action depended on the fact of injury to the goods. But as the jury found actual damages, which included a finding of injury to the goods through defendants' want of care, the error did not prejudice.
The defendants were not in position to question the bona fides of the mortgage to the plaintiff. It is only a subsequent purchaser, or mortgagee, or a creditor who has laid hold of the mortgaged property by legal process, who on that ground can object that the mortgage is invalid. Ellingboe v. Brakken, 36 Minn. 156, (30 N.W. 659.)
The admission of the list made by the witness Kirkland was error. Its...
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