Thatcher v. Kaucher

• Court: Colorado Supreme Court
• Writing for the Court: STONE, J.
• Citation: Thatcher v. Kaucher, 2 Colo. 698 (Colo. 1875)
• Decision Date: 01 February 1875
• Parties: THATCHER v. KAUCHER.

2 Colo. 698

THATCHER v. KAUCHER.

Supreme Court of Colorado

February, 1875

Appeal from District Court, Arapahoe County.

DECLARATION in trover to recover the value of 45 packages or barrels of bourbon whisky, alleged to be worth $3,500. Plea: Not guilty. At the trial the plaintiff gave evidence tending to prove that he stored a quantity of whisky in a building in Denver and left it in charge of one Minch, with instructions to unbung the barrels daily, and to move them to and fro for the purpose of improving them. That Minch being without means the plaintiff gave him the privilege to sell enough of the whisky to pay his board; that no other or further authority was given to Minch; that the whisky was so left in care of Minch on the 24th of December, 1872, and that in March, 1873 Minch, sold to the defendant 45 barrels of the whisky, which defendant removed to a commission house, and sold at prices ranging from $1.50 to $2.00 per gallon. There was much evidence as to the value of the whisky. The plaintiff himself was the first witness, and before any evidence was given as to the date of the alleged conversion, plaintiff's counsel asked the following question 'State what means of knowledge you had for knowing the value of such liquor at this point at the time you left the liquor?'

Defendant objected that the time specified did not appear to be the date of conversion. The objection was overruled, and the witness answered that he had inquired of dealers as to the prices of such liquors.

Plaintiff's counsel then asked the following question: 'Did, or did not these men at that time, after your telling them the quality and character of this liquor, fix a market value for it?' Upon objection the court ruled the question improper and said: 'I think that if, by inquiry in this market, he ascertained the rate at which whiskies were selling at that time, he can state it.' Thereupon the witness stated apparently in answer to the question as proposed by the court, 'I did by inquiry; the market rate at which whiskies were selling at that time was $1.75 per gallon.' Another witness, Mr. Mahar, the commission merchant who sold the whisky for defendant, was asked to state what it was worth by the gallon or by barrel in the market? To this defendant's counsel objected generally, and the court overruled the objection. The witness answered that he sold the whisky for $1.50 to $2 the gallon. The plaintiff called Joseph Bloom, and inquired of him what authority he, the plaintiff, gave to Minch, on the day the plaintiff left Denver? To this the defendant objected generally, and the objection was overruled. The witness answered that Minch was instructed to sell no more than to pay his board, and to take care of the whisky. Other witnesses were asked to state the value of the whisky per gallon, to which the defendant entered a general objection, without specifying any ground therefor, and the court overruled the objection. Various sums ranging from $1.25 to $2 per gallon were given as the value of the whisky. It was also in evidence that the plaintiff left Denver about the 24th of December, 1872, and was absent at the time the defendant removed the whisky from the house at which it had been placed, to the commission house of Mr. Mahar, which was in March, 1873.

It did not appear that the defendant had any knowledge of the instructions given by plaintiff to Minch, or of the manner in which he had been left in charge of the goods. Several persons called by defendant, testified that Minch sold by quantities, large and small, during the months of January, February and March, 1873, and that he appeared to be keeping the house open for business during those months.

Upon motion of the plaintiff, the court directed the jury to disregard all the testimony so given on the part of the defendant. The defendant presented to the court a number of...