Scharndorf v. Alten

49 Misc. 123, 96 N.Y.S. 452

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1905
• Status: Published

Opinions

Scott, J.

The plaintiff’s assignor purchased at auction a great quantity of unassembled parts designed to make up some three hundred typewriters. There was on exhibition, at the time of the sale, one completed typewriter called throughout the case the “ model.” It appears that it was one of three models made up some time previously. After the sale the defendant, who was apparently the person for whom the sale was made, took possession of the model. Plaintiff’s assignor, claiming that it was included in his purchase, de-' manded its delivery to him and, this being refused, assigned to plaintiff who now sues for damages for the conversion. It seems to have been conceded at the trial that the main question to be determined was whether or not the model was included in the sale, and upon this issue the jury found in favor of the plaintiff, although the evidence was of the slightest. The auctioneer and his partner swore positively that it.was not sold or offered for sale. The catalogue of the goods to be sold does not include it, nor does the bill furnished to plaintiff’s assignor. The owner of the patents for the machine, apparently disinterested, swore that the model belonged to him and had been loaned to be exhibited at the sale, but not to be sold. In view of this testimony, I should be disposed to consider the verdict as contrary to the evidence were it not for the fact that there was evidence that, at the sale, defendant had urged plaintiff’s assignor to buy the plant, and had stated to him then that the model was included. The defendant did not deny this statement and no explanation was given why he was not called to the stand. The jury were justified in believing that he did make the statement and, also, in believing that plaintiff’s assignor relied upon it in buying the property. If this were so, the defendant could not now be heard to deny that the model was included in the sale. On the question of damages, however, it seems to me that the verdict cannot be upheld. Practically the only testimony that can in any way be said to sustain the verdict is that given by one Uhlig, the inventor of the machine, who was, at the time of the trial, in the employ of plaintiff’s assignor and who had been active in procuring evidence in plaintiff’s behalf. He testified that it had cost $9,000 to make up the three models. He was then asked, and testified as follows: “ Q. What is the reasonable value of this particular model— not what it cost you or the concern ? A. $50. Q. Of a model I said ? A. Two or three thousand dollars.— To build a model it will cost two or three thousand dollars.” It seems to he clear that the witness arrived at these two widely divergent estimates of value from quite different standpoints. Treated simply as a typewriting machine, he put its value at $50. Considered as a model, to be used in assembling parts into a completed machine, he gave it a very much larger value. It seems to me that, in this action, the latter valuation should not be accepted as the measure of damages. It is undoubtedly true that the plaintiff, in such an action, is entitled to recover the value of the chattels to him, and is not necessarily limited to the market value. But, if the chattel which has been converted had an especial and peculiar value to the plaintiff, much above its value treated merely as a machine without reference to its use, the facts establishing that special and peculiar value and the value itself should be shown. These facts were not shown in the present case. Apart from its value regarded merely as a typewriting machine, we may perhaps conjecture that it would have an especial and peculiar value to the purchaser of the unassembled parts, as a model or guide to the assembling of the parts into completed instruments. It does not appear that it had any especial value to plaintiff’s assignor for this purpose, and it may well be that it possessed no such value to him at all, for he had taken into his employ the inventor of the machine who, it may be assumed, did not require a model in order to assemble the parts. Treated merely as a machine, without regard to its possible use as a model, the highest estimate placed upon its value was fifty dollars; and it was shown that the identical machine had been bought at auction for three dollars, or three dollars and a half. I think that the evidence on the subject of damages was entirely insufficient to support the verdict and, for thisi reason, the judgment should be reversed and a new trial granted, with costs to appellant to abide the result.

Gtildeesleeve, J., concurs.