Mortimer v. Marder

Foote, C.

This action was brought to recover of the .defendants damages for their having caused the personal property of the plaintiff to be seized in attachment in an action in the state of Oregon, brought against the plaintiff’s husband, J. D. Mortimer, by the defendants, and for their having caused the same to be sold under execution, bought in by a third party, and wholly lost to the plaintiff, and thereby converted wrongfully to the use of defendants.

It is alleged that the value of the property thus converted was two thousand dollars, and that the plaintiff spent three months of time and five hundred dollars in pursuit of the property.

Judgment was prayed for two thousand dollars, and interest from the date of the alleged conversion, April 8, 1884, and for the further sum of one thousand dollars and costs.

The cause was tried before a jury, who rendered a verdict in favor of the plaintiff for the sum of $2,612.50, upon which judgment was duly given and made. A motion for a new trial being made, the trial court was of opinion that the verdict was excessive, and that the same should be reduced to the sum of two thousand dollars, and accordingly directed that unless the plaintiff remitted the excess, a new trial should be granted.

The plaintiff entered an acceptance of the reduction thus ordered, and thereupon the motion for a new trial was denied. From the judgment above adverted to, and the order refusing a new trial, this appeal is taken.

One point which appears to be insisted on by the defendants for a reversal of the judgment and order is, that there is no proper legal evidence to sustain the verdict. They seem to rest this assumption upon the idea that the evidence shows,—1. That there was no value whatever of the converted property proven on the trial; 2. That the property was community property; 3. If not, that it was partnership property; 4. That the goods levied on were purchased with money which was community or partnership property.

*177 As to the evidence given in relation to the value of the property, it is to be said that it was shown that it had no market value; that it was second-hand property, and had been lost by the conversion of the defendants, which being so, and no objection being offered to the introduction of the further evidence which tended to show when the plaintiff purchased the property, what it then cost her in the market, how it had been used, and what its condition was, and what the depreciation was, if any, both the plaintiff and her husband testifying that the property seized was worth at least two thousand dollars, and that it was her separate property, purchased with her separate moneys,—it would seem that the evidence of value, unobjected to by the defendants, was a proper basis on which the jury might legitimately fix the value of the same in rendering their verdict.

As remarked in Jones v. Morgan, 90 N. Y. 10 , 43 Am. Rep. 131 , under a similar state of facts: “ It was incumbent upon the plaintiff to make the best proof she could. . . . . There seems to have been no other feasible way to ascertain the value.”

The plaintiff and her husband both testified, as heretofore stated, that the property seized was her separate property, purchased with her money. If the jury believed them, as was their right, we do not perceive that it can be said that it was community or partnership property, notwithstanding that ordinarily, where property is purchased at the time this was, and after the marriage of the parties, it would be presumed to belong to the community, and would require satisfactory proof to the contrary to rebut that presumption. (Moore v. Jones, 63 Cal. 14, 15 .)

The contention is also made, that as the money originally was given the plaintiff in England, and then was invested in Nebraska, and from there taken to Oregon and invested in the property involved here, that the law of California, where the action is brought, as to community property, should not prevail, but that of the common *178 law, although there is no evidence in the case as to what the law of the foreign state is.

This position, being in direct conflict with the decisions in this state, need not be further considered. (Hickman v. Alpaugh, 21 Cal. 226 ; Hill v. Grisgby, 82 Cal. 60 ; Marsters v. Lash, 61 Cal. 624 ; Shumway v. Leakey, 67 Cal. 460.)

It is said by the appellants that evidence was inadmissible to prove the value per week of the plaintiff’s time while pursuing the property. But the court below reduced the verdict to the actual value of the property as testified to by the plaintiff, and there could be no prejudicial error, therefore, even if it be conceded, though not decided, that this evidence was inadmissible, and that the answer of defendants did not admit the value of her time to have been more than she testified to.

A certified copy of a certificate of partnership of the defendants Harder, Luse & Co., filed in San Francisco, California, was introduced by the plaintiff, and objected to by the defendants. It tended, as we think, to show that two of the defendants here were members of the firm,—that is, John Harder and A. P. Luse, — and was competent evidence, there being nothing to show that any new certificate had been filed. (Civ. Code, secs. 2469-2471.)

We think also that "the nonsuit was not improperly denied as to John Harder and A. P. Luse.

We have examined with care and attention the other points made by the appellants as to the action of the court below in refusing to admit evidence proposed by the defendants, but do not perceive any prejudicial error, and we therefore advise that the judgment and order be affirmed.

Vanclief, C., and Belcher, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.