Philbrook v. Kellogg

Headnote

Action for conversion — damages — •price realized at auction not conclusive on either party.

Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

" The action was brought to recover damages for the conversion of certain articles of personal property seized by the defendant and sold under a chattel mortgage executed by the plaintiff’s wife. The verdict of the jury was for less than the amount realized on the sale of the property at auction.

The court at General Term said :

“ The evidence in this case as to the value of the property in dispute was conflicting, and the verdict must be held conclusive, unless, as matter of law, the jury was bound to render a verdict at least for a sum equal to what the property brought at auction, with interest thereon up to the day of trial.

“ The auction price is evidence of the value of property, proper to be submitted to a jury, but it is not conclusive for or against

either party. The plaintiff did not seek to affirm the sale and recover the proceeds, but charged the defendant as a wrongdoer’, and sought to recover damages for the tort.”