Docket No. 22

Decided: Saturday, March 8th, 1890

Opinion: 1 Wash. 227 (1890)

Court: Anders1 Court (1889-1892)

Anders

Dunbar

Hoyt

Scott

Stiles

BROTTON v. LANGERT, 1 Wash. 227; 23 P. 803 (1890).

No. 22.

SUPREME COURT OF WASHINGTON

March 8, 1890, Decided Error to District Court, Pierce County. Action by Charles Langert against M. Brotton, to recover the sum of $ 1,000 damages for the taking and selling of certain personal property by defendant while acting as constable of Tacoma precinct in Pierce county. On the 25th day of May, 1887, one Westlin was indebted to plaintiff in the sum of $ 1,200. On that day he made and delivered to plaintiff a promissory note for that amount, payable on demand, and to secure its payment executed a chattel mortgage on certain liquors and furniture used in operating the Exchange Hotel in the city of Tacoma. The mortgage provided that Westlin might retain possession of the property until default was made in payment, and that he might sell the liquors at retail for cash, account for the sales so made at the close of each day, and pay over the proceeds to plaintiff for application on the mortgage debt. On the next day after the execution of the mortgage, and for several days after, suits were commenced against Westlin by various parties, and on the second day of June, 1887, the defendant Brotton, under executions issued out of the justice's court, took possession of the mortgaged property, closed the hotel and tore up the carpets. On the 17th day of June the defendant, having advertised the property for sale, sold it in parcels to various purchasers, and the property was removed from the premises. A small portion of the property was left by defendant unsold; and this plaintiff took possession of and sold for $ 325. He also received some $ 18 or $ 20 in addition thereto. Trial was had before a jury, and a verdict rendered for plaintiff for the sum of $ 1,000 damages.

Court: Judgment reversed with costs.

Counsel: E. W. Taylor, for plaintiff in error. Judson, Sharpstein & Sullivan, for defendant in error.

Judge(s) HOYT, J. ANDERS, C. J., and DUNBAR, STILES and SCOTT, JJ., concur.

Opinion By: HOYT The opinion of the court was delivered by HOYT, J.--Plaintiff in this action sought to recover damages for the conversion of certain articles of personal property upon which he had a mortgage. Defendant attempted to justify as an officer by virtue of certain executions against the mortgagor.

Numerous errors are assigned to the rulings of the court below, but in view of the unsatisfactory state of the record, and of a division of opinion as to what is made to appear therefrom, we shall only notice two of said alleged errors, and leave the questions presented by the others to be determined in some other case. During the progress of the trial plaintiff admitted that he had received certain sums of money from the mortgagor to be applied upon the mortgage debt, and when asked as to the amount of such payments stated that he could not tell.

He was then shown a certain memorandum and asked if by the aid thereof he could get such amount? Upon examination it appeared that such memorandum was not made by himself but by his clerk, and that he, witness, could not say how said clerk made up the same. Upon this appearing counsel for the defendant objected to the witness using the memorandum in giving his testimony. The court, however, against such objection, allowed the witness to read from such memorandum as to the items of payment made by the mortgagor. Exception was duly taken to such ruling and error assigned thereon.

The amount still due upon the mortgage was material to the plaintiff's case, and as he had testified that certain payments had been made, it became material that he should show the amount of such payments. Therefore the evidence elicited from the witness by the aid of the memorandum was material. Was the memorandum such as the witness was authorized to read from to the jury? If it was not, it was error to allow the witness thus to use it.

It is not claimed that the paper used was such as, in itself, could be introduced in evidence, but it is contended that it comes within the rule which allows certain memoranda to be used by a witness to refresh his memory when testifying. If this memorandum was of that class, it is possible that it was not error to allow witness to read therefrom, though the usual course is to allow the witness to read the memorandum and then to testify to knowledge of the facts as to which he has thus refreshed his memory.

In our opinion, however, the memorandum in question was not shown to be such as could be used by the witness even for the purpose of refreshing his memory. It comes within none of the three classes recognized by the writers on evidence, especially in view of the fact that after reading it the witness did not pretend to say that he then had any personal knowledge of the statements therein contained. See 1 Greenl. Ev., § 436, 437. Plaintiff introduced evidence tending to show that the value of all the property covered by his mortgage was about twelve hundred dollars. But the uncontradicted evidence in the case showed that only a portion of such property was converted by the defendant, and that the value of those goods not taken by him was at least seven hundred dollars.

Under the pleadings in the case, plaintiff could only recover the value of the goods converted by the defendant, not exceeding in amount the balance unpaid upon his mortgage. See Sheehan v. Levy, ante, p. 149, decided at this session of this court.

Hence it follows that the verdict of one thousand dollars was much larger than the evidence warranted, and that defendant's motion for a new trial on that ground should have been granted.

For the errors above stated the judgment must be reversed with costs and a new trial granted.

ANDERS, C. J., and DUNBAR, STILES and SCOTT, JJ., concur.