Taussig v. Schields

• Decision Date: 17 May 1887
• Parties: HUBERT P. TAUSSIG, Respondent, v. ABRAHAM SCHIELDS, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 318

HUBERT P. TAUSSIG, Respondent, v. ABRAHAM SCHIELDS, Appellant.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

A. A PAXSON, for the appellant.

GEORGE W. TAUSSIG and LEE SALE, for the respondent.

OPINION

THOMPSON J.

The petition contains three counts, but the first and third were dismissed at the trial, and the cause was submitted to the jury on the issue formed upon the second. This count alleged that the plaintiff, being the owner of a quantity of jewelry entrusted the same to the defendant to sell for the plaintiff, for a reasonable reward, and that the defendant so negligently kept the jewelry that it became wholly lost to the plaintiff. The answer, after a general denial, admitted that the plaintiff entrusted certain jewelry to the defendant to sell for the plaintiff, though not as much as that alleged in the plaintiff's petition; that all that portion of the same, consisting of precious stones, was returned to the plaintiff, and that the rest was stolen from the defendant although kept by the defendant in a careful way, and without fault of the defendant. Upon this issue the case went to trial before a jury.

The plaintiff gave evidence tending to show that he entrusted a large quantity of jewelry, consisting of rings, bracelets, and various other pieces, to the defendant, to be sold for the plaintiff, for a reasonable reward, and that the defendant kept the same for a considerable length of time, and failed to return the same to the plaintiff, though often requested so to do, and, finally, claimed that the jewelry had been stolen from him, and offered to pay the plaintiff one hundred dollars for the loss, which the plaintiff declined. It, also, appeared that another parcel of jewelry, consisting of certain loose stones, had been entrusted by the plaintiff to the defendant, to be sold in like manner, and had been returned by the defendant to the plaintiff. Concerning the loss of the articles embraced in this action, the defendant's evidence admitted his receiving articles of that kind, though not as great a number of pieces as that claimed by the plaintiff. There was, also, a great discrepancy between the evidence of the plaintiff, and of the defendant, in respect of the value of the articles of jewelry embraced in this controversy. The plaintiff's evidence tended to show that they were, at the date when they were lost, of the value, at wholesale, in the St. Louis market, of from five hundred and fifty to six hundred dollars, and, possibly, even more than the last named figure. The defendant's testimony, however, was to the effect that they were of the value of one hundred to one hundred and fifty dollars only, and that the plaintiff had intimated a willingness to take for them the sum of one hundred and seventy-five dollars. The plaintiff would not say, in giving his own testimony, that he had not stated to the defendant that he (plaintiff) had sold another, and a different, lot of jewelry to one Bauman, for one hundred and sixty-two dollars, and that he had told the defendant that he ought to obtain for this lot one hundred and seventy-five dollars. The plaintiff excused this statement by testifying that he did not know the value of the jewelry at the time, and did not know that it had previously been valued by Mr. Gregg, an expert jeweler, at the sum of six hundred dollars.

The defendant's evidence also tended to show that, on the night of April 13-14, 1883, the defendant had left this jewelry, together with some other jewelry, old coins, pipes, and, perhaps, other articles of his own, in a box in his office, which was on the third floor of the building known as 513 Walnut street, in St. Louis; that during the night the room was entered by burglars, they forcing open the doors; that this box was forced open, and all its contents carried away, together with some articles of clothing kept by the defendant in his closet; that, although he used due diligence to discover the thieves, and reclaim the articles, he was never able to obtain any trace of them.

The court directed the jury, that, if they returned a verdict for the plaintiff, they should state that it was returned under the second count of the petition, the other counts not being submitted to them for decision. The jury returned a general verdict for the plaintiff, " in the sum of six hundred dollars, interest included." Upon this verdict judgment was entered, and from this judgment the defendant appeals. The points relied on by the appellant will be considered in their order.

I. The first point is, that there is no proof whatever that the defendant received any property from the plaintiff, in the year 1884, as claimed in the second count of the petition, and that there is no sufficient description of the property. (1) It appears, from the evidence, that the property was delivered by the plaintiff to the defendant, in the fall or early in the winter of 1883; that the loss or theft of the jewelry happened, as before stated, in April, 1884; that the defendant did not notify the plaintiff of the loss until the fall of 1884. It is needless to say that a variance in dates, of this nature, is immaterial, the transaction being otherwise distinctly identified by the testimony. Even in a criminal indictment, although it is necessary to lay the date of the offence, it is not, in general, necessary to prove the date as laid. For stronger reasons, such strictness is not required in civil cases. (2) Nor are we of opinion that the assignment, that there is no sufficient description of the property, is well taken. The plaintiff's agent, who delivered the property to the defendant, trusted to the honor of the defendant, and neglected to take a detailed receipt, piece by piece, for the property; but a list of the property was in his possession, from which it was identified and its character described.

II. The next assignment of error is, that the damages are excessive. Whether the damages are excessive depends upon whether the jury believed the witnesses who testified for the plaintiff, or whether they believed the testimony of the defendant. Two expert witnesses for the plaintiff testified as to the value of the jewelry: Mr. Jolivet, who claims to have manufactured the articles, and Mr. Gregg, an expert jeweler. Mr. Jolivet's estimate of the value of the articles, at wholesale prices, that is, their value to the manufacturer, places the aggregate value at seven hundred dollars, in 1884, and five hundred and fifty dollars at the date of the trial, which was in November, 1886. The final conclusion of this witness was: " I should judge the goods, from what I have seen and know, and the statement that I have made out, the memorandum that I have had, to be worth from seven hundred to eight hundred dollars in the store." Mr. Gregg had been called upon, as an expert, to value the jewelry, while it was still the property of Mr. Jolivet, for the purpose of enabling Mr. Jolivet to obtain a loan, upon a pledge of them, from Mr. Carey, of Alton. He placed the value of six hundred dollars upon the articles, regarding them as not worth much more than that value as old gold, and advised that they would be good security for a loan of that amount. The list of jewelry, which Mr. Jolivet originally prepared for delivery to Mr. Carey, contained one hundred and two pieces, all but eleven of which were shown, by the plaintiff's evidence, to have been delivered by him to Carey, by Carey to the plaintiff, and by the plaintiff to the defendant. A detective, who had been called in by the defendant to inspect his premises, and take an inventory of the stolen property, on the morning after the robbery, testified, to the best of his recollection, that the defendant claimed to him that all the property in the box was worth between four hundred and fifty and five hundred and fifty dollars. This included everything in the box, the defendant's property and all. The defendant's evidence tended to show that his property, which was in the box, was of the aggregate value of from two hundred to two hundred and fifty dollars. The character and value of the eleven articles of the original list, which had not been delivered to the defendant, does not appear; and, though the evidence is somewhat blind on the point, we infer that they were not among the articles, the value of which is testified to by Jolivet and Gregg. It can not, we think, be said that the award of damages, made by the jury, was not within the limits of the evidence, when it is considered that they were at liberty to allow interest at six per cent. per annum, in the way of damages, which interest they did allow and include in their verdict, and when it is remembered that the period during which they must have allowed six per cent. interest, was between two and three years. The verdict of the jury is, apparently, as large as the evidence would warrant; possibly much larger than it ought to have been; but, clearly, we can not reduce it, without undertaking to perform the office of a jury in passing upon the credibility of the testimony, which we have no power to do.

III. Objection is made that the plaintiff was per mitted to testify in his own behalf that, on the twentieth of September, 1884, the defendant, in response to repeated demands to return the jewelry, appeared at the plaintiff's office and stated that the jewelry was lost that it had been lost in April, and offered to pay the plaintiff one hundred dollars to close the matter. This evidence was objected to by the defendant, " as irrelevant and immaterial." The court responded: " He may state what the defendant said about the loss." The bill of exceptions next recites: " To which action of...