The Omaha Auction & Storage Co. v. Rogers

• Decision Date: 30 June 1892
• Citation: 52 N.W. 826,35 Neb. 61
• Parties: THE OMAHA AUCTION & STORAGE CO. ET AL. v. HARRIET ROGERS
• Court: Nebraska Supreme Court

52 N.W. 826

35 Neb. 61

THE OMAHA AUCTION & STORAGE CO. ET AL. v. HARRIET ROGERS

Supreme Court of Nebraska

June 30, 1892

ERROR to the district court for Douglas county. Tried below before DOANE, J.

AFFIRMED.

Cavanagh & Thomas, for plaintiff in error, cited: Engster v State, 11 Neb. 542; Holmes v. Bailey, 16 Id 305; Ahlman v. Meyer, 19 Id., 68; Holmes v Bell, 3 Cush. [Mass.], 322; N. E. Mtg. Sec. Co. v. Aughe, 12 Neb. 506; Perkins v. Conant, 29 Ill. 184.

J. W. West, contra, cited: Charter v. Stevens, 3 Denio [N. Y.], 33.

OPINION

MAXWELL, CH. J.

This action was brought by the defendant in error to recover from one Octave Bouscaren the value of certain household goods sold under an alleged foreclosure of a chattel mortgage. The plaintiffs in error (defendants below) alleged in their answer that the goods were sold under a chattel mortgage executed by Mrs. Rogers to one named Conalline, which mortgage was assigned to Bouscaren. Mrs. Rogers in her reply alleges usury in the transaction in which the chattel mortgage was given, and a tender of the amount lawfully due thereon prior to the sale. The cause was submitted to a jury, which returned a verdict in favor of Mrs. Rogers for the sum of $ 408.02, upon which judgment was rendered.

The chattel mortgage is as follows:

"This indenture, made the 25th day of June, A. D. 1888, between Mrs. G. C. Rogers, party of the first part, and G. Conalline, party of the second part,

"Witnesseth, That said party of the first part, in consideration of $ 97.50 in hand, has bargained and sold, and by these presents do grant and convey, unto the said party of the second part the following described goods, chattels, and property, to-wit: One bedroom set, composed of marble top, black walnut, washstand, dresser, and bed; three oil paintings; one marble top center table; one large mirror; one upholstered black walnut sofa; one upholstered rocking chair; one black walnut upholstered arm chair; one cane rocking chair; one bronze clock; one set antique oak bedroom furniture, composed of bed, washstand, and dresser, together with all chairs, bedding, etc.; one No. 3 Silvia stove, not sold; and all carpets, ornaments, rugs, and personal property of any description contained in the house known as 1211 Dodge street, Omaha, Nebraska, and agreed to be kept on such premises; together with all the appurtenances and all the estate, title, and interest of the said party of the first part therein.

"The condition of the above sale is such, that whereas the said party of the first part has executed and delivered to the said party of the second part certain promissory note of even date herewith, payable in ninety days, and bearing interest at the rate of ten per cent per annum after maturity:

"Now if the said party of the first part shall well and truly pay unto the said party of the second part the said note and interest thereon according to the tenor and effect thereof, then this conveyance shall be void; otherwise to be and remain in full force and effect. But in case the said party of the first part shall fail to pay the full amount of said promissory note, principal and interest, according to the tenor and effect thereof, then, in that case, the said party of the second part is hereby authorized and empowered to take possession of the above described property and sell the same at public sale, after giving twenty days' notice of such sale by advertisement thereof in some newspaper published in said county of Douglas; and after paying all the costs, charges, and expenses of every nature incurred in and about the collection of said note, shall apply the remaining proceeds of said sale in payment of said note, principal and interest, and pay over the surplus, if any there be, to the said party of the first part.

"It is hereby expressly agreed that the said party of the second part shall have the right at any time, at his election, to take possession of the above described property and hold the same.

"Witness my hand the day and year first above written.

"MRS. G. C. ROGERS.

"In presence of

"O. BOUSCAREN."

The goods were sold under mortgage on the 23d of April, 1889.

The testimony of Mrs. Rogers is that she borrowed $ 75 from Bouscaren and executed a note and mortgage to him for $ 97.50, due in three months, that she made various payments during the ensuing nine months, amounting in all to $ 69. Bouscaren testifies that he made the loan, that he was not certain as to the exact amount, but he thought he loaned $ 90. He admits that in any event the loan was grossly usurious. He also admits receiving $ 65 as payment on the debt before the foreclosure of the mortgage. The note and mortgage seem to have been taken in the name of Conalline to enable Bouscaren to claim that he was an innocent purchaser thereof.

The first objection made by the plaintiff in error is that Mrs. Rogers was not competent to testify as to the value of the goods. It is true she was not dealing in goods, but her testimony shows that she was acquainted with goods of this character and knew something of their value. Her first statement as a witness was that she knew the value of the goods, and her cross-examination failed to show that she did not possess sufficient knowledge to testify as to their value. Her testimony is fair, and while she did not profess to be a dealer in second-hand goods she did show a sufficient knowledge to entitle her to testify as to the value. (Rogers on Expert Testimony [2d Ed.], sec. 152.

Second--It is claimed that there was no conversion of the goods shown. We think differently, however. It is admitted that considerable more goods were sold than were necessary to satisfy the debt. Where such is the case, the mortgagee is liable for the conversion of the goods so unnecessarily sold. (Charter v. Stevens, 3 Denio 34.)

Third--Objections are made to instructions 1 and 2 given by the court on its own motion....