Sanford v. Peck
| Decision Date | 13 December 1893 |
| Citation | 27 A. 1057,63 Conn. 486 |
| Court | Connecticut Supreme Court |
| Parties | SANFORD v. PECK et al. |
Appeal from superior court, New Haven county.
Action by George L. Sanford against Peck & Bishop for the conversion of certain household furniture stored in defendants' warehouse. There was a verdict for plaintiff, and defendants appeal. Reversed.
H. Stoddard and S. A. York, Jr., for appellants.
C. S. Hamilton and S. A. Morehouse, for appellee.
The defendants are warehousemen doing business at New Haven, and as such had in their possession a large amount of merchandise—mostly household furniture—belonging to the plaintiff. On the————day of August, 1892, the plaintiff demanded the said merchandise of the defendants, but they neglected and refused to deliver it to him. Thereupon he brought this action. The cause was tried in the superior court upon issues joined to the jury, and seems to have been contested with great stubbornness. A great many rulings were made in respect to the admission of testimony and the instructions to the jury, and exceptions were taken. There was a verdict for the plaintiff. The defendants bring the case here by appeal. Of the rulings made and the instructions given, we find it necessary to discuss only two, which we will consider.
Among the merchandise so in the possession of the defendants were carpets and sundry articles of upholstered furniture. The plaintiff, at the trial, claimed that these had been so carelessly kept by the defendants that they had been attacked by moths and very greatly injured, and asked the court to instruct the jury that the defendants were liable for such actual damage as they should find was thereby caused to the plaintiff's goods. The court did so instruct the jury. This, we think, was error. There is nothing in the complaint to indicate that the plaintiff would ask to recover damages of the defendants for any want of care on their part in this respect, and without such an averment there could be no recovery. The third paragraph of the complaint alleges that "the defendants did not take due and proper care of a portion of said merchandise, and so carelessly kept such portion as that they lost the means of identifying the same, and converted it to their own use; and the defendants sold the remainder of said merchandise without authority from the plaintiff, for their own benefit, and so converted the same to their own use." It is true that warehousemen must use ordinary care to preserve merchandise in their hands from injury, and are liable in damages for any injury caused by an omission to use that degree of care; but, when damages are sought in an action against warehousemen for such a want of care, the complaint must contain averments which fairly and reasonably apprise them that that claim is to be made. 1 Chit. Pl. 255; Taylor v. Keeler, 50 Conn. 340. The present complaint does not do so. This complaint charges a conversion by the defendants of the plaintiff's merchandise, and a conversion alone. No other cause of action is set out So much of the complaint as avers any want of care by the defendants is quoted above. It says, indeed, that the defendants did not take due and proper care of a portion of said merchandise. It does not say that by reason of such want of care the merchandise was injured, but that thereby the defendants lost the means of indentifying that portion of the merchandise, and so converted it to their own use. The paragraph then goes on to say that the defendants sold the remainder of said merchandise for their own benefit, and in that way converted that portion to their own use; that is to say, the defendants are charged with converting one portion of the merchandise by losing the means of identifying it, and the remainder by a sale. Upon that complaint the plaintiff was not entitled to recover for any injury happening to his furniture previous to the conversion. Ives v. Town of Goshen, 63 Conn. 82, 26 Atl. 845. If evidence of the price received at the auction sale had been admitted, then, to explain that price, and to show why it was smaller than the plaintiff believed it ought to have been, the plaintiff might doubtless show that the property, or some of it, had been injured while in the hands of the defendants by their want of care.
The defendants admitted selling the merchandise of the plaintiff. They sa...
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