Loftus v. Agrant

• Decision Date: 05 April 1904
• Citation: 99 N.W. 90,18 S.D. 55
• Parties: LOFTUS v. AGRANT.
• Court: South Dakota Supreme Court

99 N.W. 90

18 S.D. 55

LOFTUS v. AGRANT.

Supreme Court of South Dakota

April 5, 1904

Appeal from Circuit Court, Minnehaha County.

Action by J. J. Loftus against J. Agrant. Judgment for plaintiff. Defendant appeals. Affirmed.

Aikens & Judge, for appellant. Joe Kirby, for respondent.

FULLER J.

At the trial of this action to recover $125 as damages for the wrongful conversion of a diamond stud, the jury returned a verdict for $107.50 in favor of plaintiff, and defendant has appealed from a judgment accordingly entered, and from an order overruling his motion for a new trial.

In support of the issues raised by the complaint and a general denial, respondent testified on direct examination, and without any objection, as follows: "I reside at Sioux Falls. I am roadmaster on the Omaha. I met Agrant May 20th and asked him for some money on a diamond stud. He asked me how much I wanted, and I told him $10 or $12, and he says 'I will give you $15.' I says, 'All right.' I left the stone, and he gave me the money. I don't know the size. I paid $125. He further said there would be $1.50 interest for 30 days. I had a further talk with him before that 30 days was up. About June 10th I stopped into his place, and asked him if the time could be extended if I should not happen to be in town, and he said, 'Yes.' There was nothing further said that I call to mind at that time. I had a talk with him later, about the 24th of June. I stopped in to pay him, and get the stud, and he told me that his wife had the stud, looking at it. He said he would bring it down that afternoon. I called there again in the afternoon, and he said, inasmuch as it was four days after due, he would keep it. He has kept it up to date. I have never seen it. I have never got paid for it." Cross-examination: "It was not material to me whether I got ten or twelve or fifteen dollars. I did not need any more than that. I asked him if I could borrow ten or twelve dollars. That is all I needed until I heard from home. That is what I told him. He looked the stone over carefully, and concluded he would let me have $15. I don't know what it weighed. He did not weigh it. He took my word for it. He examined it before me. I say it was worth $125. I know it was worth $125, because I paid that. I suppose if you pay $125 for anything, it is worth that much to you. That is the way I mean to be understood. I bought it from a first-class jeweler and a particular friend. I know it was worth $125 because it was worth that to me. I paid that for it. That was its market value. It would bring it in the market. I never did offer it for sale in the market. *** On the 24th day of June I asked him for the same stone I had left there. I offered to pay him for it. When I offered to pay him for it, I had the money out on the show case--$15. I had that much out in bills. I first read this agreement to sell that he gave me after he refused to give me the stone--after finding out that I had taken some paper from him which I never read. I never went to see him afterwards. I just simply sued him." Relative to the transaction, and as further cross-examination, appellant introduced in evidence two written instruments, signed as indicated below and delivered to the...