Werger v. Steffens

132 N.W. 719, 90 Neb. 51, 1911 Neb. LEXIS 294

• Court: Nebraska Supreme Court
• Decided: October 6, 1911
• Docket: No. 16,504
• Status: Published

Opinion

Rose, J.

Plaintiff bought from defendant an improved farm in Lancaster county and went into possession under a warranty'deed. This is a suit to recover from defendant damages for digging up and carrying away rosebushes, tearing down and removing fences, detaching clock-shelves and other fixtures from the buildings, and converting to his own use a. pile, of fence posts, a roll of wire, a few movable hen nests, a lot of loose lumber and other property. The petition states that defendant sold the converted personalty to plaintiff with the farm, and that he injured the realty after the sale. Under the pleadings plaintiff was required to make proof of the damages sustained and of defendant’s liability. The jury rendered a verdict in his favor for $700, and from a judgment for that sum defendant has appealed.

As a witness in his own behalf plaintiff was asked this question: “Well, now will you say, if you know, what was the difference in value of that farm as you bought it with all those various things on it that you say the defendant had removed prior to or immediately following his deeding it to you and the condition of the farm at the time those things were removed by the defendant; what is the difference in value, if any?” Over the objections of defendant it was answered as follows: “I should judge for my part somewheres like $700 or $800. It looked" all of that to me bad, all of that.” The overruling of the objections is assigned as error, and the answer of the witness is the only evidence of the amount of damages sustained. A considerable portion of the property in controversy was personalty. The measure of damages for the conversion of chattels is their market value at the time of the conversion. This value can only “be properly ascertained by the testimony of witnesses possessed of sufficient information to enable them to give intelligent opinions upon the subject.” Peokmbangh v. Quillin, 12 Neb. 586. To permit the witness, in proving the damages for the loss of the personalty, to state the difference in the value of the farm before and after the conversion is, of course, erroneous. The question was not in proper form, had it related alone to realty. The answer quoted being the only proof of the value of the converted chattels, was the error prejudicial to defendant? In testifying, the witness had described to some extent the personal property in controversy, but in a number of instances he did not pretend to give the quantity or quality with any degree of accuracy. He did not testify to the value of any separate item or state that he knew the value thereof. He did testify, however, that he had lived on a farm for 40 years, but when asked, “You know something about the value of conveniences on the farm, do you?” he answered, “I can tell a good-looking farm from a poor one.” There is no better evidence of his qualifications to testify to the value of the converted personalty than that mentioned. In addition, most of the witnesses who heard the conversation between plaintiff and defendant in relation to the property purchased testified to statements indicating that plaintiff bought nothing but the real estate and what was attached to it. On the face of the record the error was clearly prejudicial. A similar mistake was made in the charge to the jury and should not recur in the further proceedings.

Reversed and remanded.