Schacht v. Oriental Storage & Transfer Co.

• Decision Date: 18 November 1913
• Court: Wisconsin Supreme Court
• Parties: SCHACHT v. ORIENTAL STORAGE & TRANSFER CO.

155 Wis. 121

143 N.W. 1058

SCHACHT

v.ORIENTAL STORAGE & TRANSFER CO.

Supreme Court of Wisconsin.

Nov. 18, 1913.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by Rosa M. Schacht against the Oriental Storage & Transfer Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for conversion brought to recover the value of two lots of goods consisting of household furniture which plaintiff claimed to own, and which were left with the defendant for storage. The first lot was stored in 1908, and the second in 1909. The goods were sold by defendant in March, 1911, to pay storage charges; the first lot being sold for $61, and the second for $18.25. In making the sale the defendant proceeded under chapter 391 of the Laws of 1903. Damages were claimed in the complaint for $1,500. The case was tried in the civil court; a jury being waived. The court assessed the plaintiff's damages at $450, and, from a judgment in plaintiff's favor, defendant appealed to the circuit court, where the judgment of the civil court was affirmed. From such judgment, this appeal is taken.Curtis & Mock, of Milwaukee, for appellant.

Rubin & Zabel and Horace B. Walmsley, all of Milwaukee (W. B. Rubin and A. W. Foster, both of Milwaukee, of counsel), for respondent.

BARNES, J. (after stating the facts as above).

The appellant insists that the judgment should be reversed (1) because there was no competent evidence to show that the value of the goods exceeded $100; (2) because the second lot of goods was stored by one O'Malley, and plaintiff had no right to recover therefor; and (3) because the defendant was a common carrier, and as such had the right to proceed to sell the goods for unpaid storage charges in the manner in which it did.

1. On the first ground of error it is insisted (a) that plaintiff was incompetent to testify to the value of the goods; (b) that, if she was competent, she adopted an improper basis for determining value; and (c) that in any event there was no evidence which would warrant a recovery of $450.

[1] (a) The owner of property of this class which has no established market value is competent to testify to its value, particularly where, as in this case, such owner purchased at least the greater part of the goods. Palmer v. Goldberg, 128 Wis. 103, 107 N. W. 478;Farley v. Spring Garden Ins. Co., 148 Wis. 622, 627, 134 N. W. 1054, and cases cited; Tradewell v. C. & N. W. Ry. Co., 150 Wis. 259, 264, 136 N. W. 794.

[2][3][4] (b) The plaintiff testified in substance that in fixing her values she took into account the cost price of the various articles, and made such deduction as she thought proper to recover depreciation. She further testified that the prices fixed by her were reasonable. The appellant argues that the reasonable market value of the goods at the time of the conversion could not be fixed in this way; the real issue being, What were the goods reasonably worth, assuming that there was a purchaser who desired to buy, but who was not obliged to do so, and an owner who desired but was not obliged to sell? It is obvious that cost and reasonable market value are not synonymous. It is just as obvious that there is no established market value for goods of this class. Their value is affected by age, by the usage which the articles have had, by the present market value of new articles of like character, and by other considerations. While cost does not determine value, it is often a very important factor in arriving at it. In many cases it is one of the elements to be considered in fixing value, and this is particularly true of articles that have no established market value. So it has been held in a variety of cases that, while cost does not fix value, it is evidence of it, and may in some instances be quite convincing evidence. Railway Co. v. Smith, 42 Ark. 265; Railway Co. v. Williams, 113 Ga. 335, 38 S. E. 744; Railway Co. v. Smith, 65 Ill. App. 101;Swanson v. Railway Co., 116 Iowa, 305, 89 N. W. 1088; Richmond v. Railway Co., 40 Iowa, 265; West Chester, etc., Co. v. Chester County, 182 Pa. 40, 37 Atl. 905;Kennebec Water Dist. v. Waterville, 97 Me. 186, 54 Atl. 6, 60 L. R. A. 856;Rawson v. Prior, 57 Vt. 612;Carr v. Moore, 41 N. H. 131;Schall v. Northland Motor Car Co. (Minn.) 143 N. W. 357, and cases cited. In Glaser v. Home Ins. Co., 47 Misc. Rep. 89, 93 N. Y. Supp. 524, it is said that evidence of the cost price of articles destroyed by fire has been frequently held to be proper, and that often it is the only evidence available. And evidence of cost is more readily received when other evidence of value is not forthcoming. State v. Sattley, 131 Mo. 464, 33 S. W. 41. We think here that the plaintiff's evidence was competent on the question of value, not conclusive to be sure, but still pertinent to the issue, and entitled to some consideration. Appellant's counsel seem to think that the contrary is held in Allen v. Railway Co., 145 Wis. 263, 129 N. W. 1094. This is a mistake. There the only evidence of value was what certain machinery and sawmill fixtures had cost four years before. In the meantime most of the articles had been through a fire. The cost of the articles was $2,478, and the jury awarded $2,000 damages. It was held that the allowance was excessive, and that the jury had...