Newsom v. Cothrane, 185 N.C. 161 (1923)

March 21, 1923 · Supreme Court of North Carolina

185 N.C. 161

R. S. NEWSOM v. E. G. COTHRANE et al.

(Filed 21 March, 1923.)

1. Appeal and Error — Burden on Appellant — Claim and Delivery — Re-plevin — Sales—Value oí Property — Seizure.

Where, in claim and delivery, the defendant has replevied and sold an automobile, the subject of the action, exception to the. plaintiff’s testimony of the value of the car, on the issues of plaintiff’s damages because it does not appear that it related to the time of seizure, is untenable on defendant’s appeal, it being required that he show error therein, which does appear of record on his appeal in this case.

2. Claim and Delivery — Value of Property — Corroboi’ative Evidence.

Where the value of an automobile replevied by the defendant in claim and delivery is material to the inquiry in the action, proof of its value within a reasonable time before or after its seizure is competent as bearing upon its value at the time of its seizure; and a witness may testify that some months before the seizure he offered to lend a certain amount of money under mortgage thereon as corroborative of his testimony of its value at the time of the seizure.

Appeaí by defendants from Lyon, J., at November Term, 1922, of Waxe.

Tbis was a civil action for tbe recovery of tbe value of a motor car. Plaintiff alleged that while tbe car was under mortgage, be placed tbe same witb defendants for tbe purpose of having it repaired. There was a dispute between tbe parties as to tbe amount and correctness of tbe repair bill. Plaintiff instituted 'ancillary proceedings in claim and delivery, gave bond; defendants replevied and, after due advertisement, sold tbe car under C.'S., 2435.

Tbe jury returned tbe following verdict:

“1. Is tbe plaintiff tbe owner and entitled to tbe possession of tbe car, as alleged in tbe complaint? Answer: ‘Yes.’

“2. What is tbe value of said car ? Answer: ‘$800.’

“3. What amount is .plaintiff indebted to defendants for repairs on car? Answer: ‘$150.’

“4. Was tbe car bid in by Smith for tbe defendants when sold? Answer:‘Yes.’”

Judgment on tbe verdict for plaintiff, and tbe defendants appealed.

J ohn W. Hinsdale for plaintiff.

J. W. Bailey for defendants.

Stacy, J.

Tbe exceptions chiefly relied on by defendants are those relating to tbe admission of evidence tending to show tbe value of tbe car at tbe time of its seizure under claim and delivery in July, 1921. Tbe car bad been in the defendants’ shop for repairs. Plaintiff stated that it was worth $í;000. M. A. Lambert, witness for the plaintiff, testified that on 1 March, 1921, he had occasion to examine the car, and at that time he valued it at $900 or $1,000, and made a loan to the plaintiff, taking a mortgage on the car for $600 as security. Defendants contend that this evidence should have been excluded because the plaintiff’s testimony relates to no particular time, and the witness Lambert could speak only of its value four months or more prior to its seizure. The jury found the value of the car to be $800.

The exception to the plaintiff’s evidence cannot be sustained because it does not appear that he was speaking of the value of the car at any time other than the time in question, to wit, the date of seizure. Appellants must show error, and they must make it appear plainly, as the presumption is against them. In re Ross, 182 N. C., 478.

As a general rule, the value of property taken or destroyed is- to be determined as- of the time and place of its taking or destruction. Hart v. R. R., 144 N. C., 91. But it has been held with us that proof of its value within a reasonable time before or after its conversion or destruction is competent as bearing upon its value at the time alleged. Wyatt v. R. R., 156 N. C., 315; Grant v. Hathaway, 118 Mo. App., 604; 34 Cyc., 1505; 8 R. C. L., 489. "What is a reasonable time, within the meaning of this rule, would seem to depend upon the circumstances of each particular case and the character of the property in question. Page v. Fowler, 39 Cal., 426.

In the instant case we think the testimony of the witness Lambert was properly admitted. What he said in regard to making a loan and taking* a mortgage on the car as security therefor was admitted only in corroboration of his evidence tending to fix the value of the car at that time.

The other exceptions require no discussion. The judgment will be upheld.

No error.