Parmenter v. Fitzpatrick

• Decision Date: 04 October 1892
• Parties: PARMENTER v. FITZPATRICK, Sheriff, et al.
• Court: New York Court of Appeals Court of Appeals

135 N.Y. 190

31 N.E. 1032

PARMENTER

v.FITZPATRICK, Sheriff, et al.

Court of Appeals of New York.

Oct, 4, 1892.

Appeal from supreme court, general term, third department.

Action by Jacob Parmenter against John J. Fitzpatrick, as sheriff of Clinton county, and others, for the conversion of a stock of goods sold by defendant under execution against A. C. Smith & Co. From a judgment of the general term (14 N. Y. Supp. 748) affirming a judgment in plaintiff's favor, and denying defendant's motion to dismiss the complaint, and also his motion for a new trial, defendant appeals. Reversed.

Beck with, Barnard & Wheeler,(John E. Smith, of counsel,) for appellant.

Riley & Conway, (T F. Conway, of counsel,) for respondent.

PECKHAM, J.

The plaintiff commenced this action to recover from the defendant, who was the sherift of the county of Clinton, the value of certain goods lovied upon and sold by the defendant as the property of the firm of A. C. Smith & Co., of which property plaintiff claims to have been the owner, under a bill of sale from the firm to him. Certain judmgne creditors of the firm had issued executions upon their judgments, and placed them in the hands of the defendant as sheriff, and he had levied upon the property, and sold it under the executions. The plaintiff recovered a verdict at circuit, upon which judgment was entered, and an appeal taken therefrom by defendant to the general term, which court has affirmed the judgment, and from the judgment of affirmance the defendant has appealed to this court. Some questions were raised upon the trial at the Clinton circuit in May, 1890, as to the character of the writing under which plaintiff claimed title, whether it was an unconditional bill of sale, or intended as a security, and whether it was executed in good faith or fraudulently. These questions were submitted to the jury, and their general verdict for the plaintiff shows they found them in his favor.

Another question was made as to the value of the goods, assuming them to have been the property of the plaintiff at the time of the sale under the executions. The plaintiff alleged the value to have been $3,500 at the time of the conversion on the 19th of April, 1888. The defendant denied that allegation. The jury rendered a verdict of $4,000 for the plaintiff. Although the value of the property was thus put in issue, there was not much contradiction as to its character. It consisted of goods in a store in Plattsburgh, in Clinton county, and was described as school and miscellaneous books, papers and envelopes, blank books, and stationers' goods generally, confectionery, albums, Bibles, artists' materials, toys, sheet music, musical publications, some small musical instruments, a few gold pens, and some pencils. A large portion of it was old stock, the accumulation of years, and but a small portion new or fresh stock; school books not in use at the time and place,-out of date; and a good many of the miscellaneous books damaged by handling. The stock was what would be called ‘shopworn.’ The judgment creditors were represented at the sale of these goods under the various executions. Before the sale their representative had examined them, and had come to a general conclusion or opinion as to their value. The sale under these executions resulted in the purchase in bulk of most of the goods by the judgment creditors through their representative. The goods thus purchased were sent, portions of them to Syracuse, and portions to Utica, N. Y. The defendant, upon the trial, offered to show that the judgment creditors used their best efforts to sell these goods to the best advantage, and at the highest prices they could, and that they realized for them several hundred dollars less than the amount bid for them at the public sale already mentioned. The record shows there was an objection to this offer of evidence, but no grounds of objection were stated, and the objection was sustained, and an exception taken by defendant. The defendant then offered to show that the entire stock bid off was subsequently sold at the best price that could be realized, and for about $1,100, (which was considerably less than the amount of the bid already mentioned,) and this offer was objected to in the same way, and the objection sustained, and the defendant excepted. The property being of such a nature that sales thereof would not be a frequent occurrence, it is apparent that the basis for proving a market price would be some what vague. Yet a market price would be evidence of the value of the goods. Shopworn goods partake somewhat of the character of second-hand goods, and, while fresh goods of the same description might be of one value, these goods would naturally be of less. The facilities for the sale of such property would seem to be as good at a city like Syracuse or Utica as at Plattsburgh. The market price at either of the former places would therefore be good evidence of the market price at the latter. The value at each place would probably be about the same. At any rate, there is no evidence to show there was any difference in the value at these different places, and the objection to the evidence offered is not pointed at any such possible ground of distinction, and we are not to assume it under such circumstances.

Nor is there any objection upon the ground of the lapse of time (not more than a year) after the bid at the execution sale. The time would not be sufficient to exclude this evidence, in the absence of any fact showing that it had caused any great or noticeable change in the value of this class of goods. The inquiry, therefore, is as to the competency of evidence of the price an article sold for at private sale as bearing upon the question of the value of that property. The plaintiff claims that the defendant has taken the plaintiff's property from him without legal authority, and, if he prove it, the defendant must pay him the value thereof. The market price of personal property at the place of conversion is ordinarily the measure of its value. The market price of personal property is nothing but the general or ordinary price for which property may be bought and sold. There is no particular number of sales necessary to be proved before such price can be said to be established. It seems plain, however, that proof of the price obtained at an actual sale made bona fide, and not a sale which was in any way forced, would tend in the direction of proving or establishing a market price, and hence would be some evidence of the value of the property sold. It might not, and, indeed, it is not claimed to be, conclusive, but it seems to be competent upon that question. If there were no other evidence upon the subject, it certainly would be sufficient for the jury to base a verdict...