Opinion
December 30, 1905.
Walter H. Liebmann, for the appellant.
Milton M. Goldsmith, for the respondent.
This is an action on an assigned claim for the conversion of certain jewelry. The plaintiff alleges that the jewelry consisted of a diamond pin, a pair of diamond earnings and a diamond ring owned by her assignor, Bertha Hahn, who on or about the 1st day of December, 1900, delivered them to one Max Hahn, who agreed to return them upon demand; that on or about the 1st day of January, 1901, the defendant, knowing the jewelry to be that of plaintiff's assignor, without the knowledge of the latter, obtained the same from said Max Hahn; that plaintiff's assignor duly demanded a return of the jewelry and thereafter duly assigned the property and cause of action to the plaintiff.
The complaint was not verified. The answer put in issue the material allegations of the complaint and for a separate defense alleged that the pin and earrings had been duly pawned and plaintiff's assignor was negotiating and endeavoring through her husband, who was her authorized agent, to obtain a larger loan thereon and redeem the same; that defendant at the special instance and request of plaintiff's assignor through her said authorized agent and "for the purpose of making an increased and larger loan thereon" to plaintiff's assignor paid the pledgee's lien thereon and redeemed the same and advanced and loaned to plaintiff's assignor a further sum, making in all the sum of $500, upon the express agreement that she should retain the possession of the property until she should be reimbursed, with six per cent interest, which plaintiff's assignor agreed to do prior to the 15th day of January, 1904; that the ring belonged to the husband of plaintiff's assignor and had also been pledged and at his special instance and request defendant paid the amount of the pawnbroker's lien thereon and redeemed the same and advanced further moneys aggregating $230 upon the like agreement that she was to retain possession of the ring, and that subsequently in consideration of the cancellation of his indebtedness to her he sold her said ring.
The defendant and plaintiff's assignor were sisters-in-law, said Max Hahn, the husband of plaintiff's assignor, being a brother of the defendant. The defendant was called as a witness for the plaintiff and testified that she got the pin and earrings from her brother, Max Hahn, between the 10th and 15th days of January, 1901, and the ring a day or two later, about the twelfth. On cross-examination she testified that she met her brother at her sister's, Mrs. Louber, and "he asked me to go down with them and take out some jewelry for him, else they would lose it; it is overdue and they have no money to take it out unless I help them out and take it out for them, and keep it until they have the money," and that she went down with him and took it out. Her testimony as first given is quite indefinite and confused as to the amount she paid the pawnbroker and as to the amount she advanced to plaintiff's assignor's husband, but on being recalled she testified definitely that she paid the Provident Loan Association, with which the pin and earnings were pawned, $275 and interest, making a little over $300, and that she paid at Simpson's, another pawnbroker, an additional sum to redeem the ring, making the aggregate amount she paid the pawnbrokers for the redemption of the jewelry $451.50, and that this, together with the amounts she advanced to plaintiff's assignor's husband for his wife, aggregated $730. Plaintiff's assignor testified that she owned all of the jewelry and it was pledged at the Provident Loan Association and at Simpson's in her husband's name with her consent; that she was desirous of obtaining it again and spoke to her husband about it, saying that she had only $200, which was not sufficient to redeem it, and that he offered to pay an existing indebtedness owing by him to her by advancing the additional amount necessary, and she thereupon gave him the pawn tickets and the $200; that he subsequently informed her that he had obtained the jewelry and placed it in the safe in a livery stable conducted by her; that she could not open the safe and had a disagreement with her husband on account of his failure to open it or bring her the jewelry; that sometime thereafter she found a certificate in her husband's pocket signed by defendant and dated January 15, 1901, stating that defendant had advanced $500 on the pin and earrings and $180 on the ring, and that she would return the jewelry to "Max Hahn or any other person" on payment of those amounts with six per cent interest.
We are of opinion that a new trial should be granted. The husband of plaintiff's assignor was authorized to redeem the jewelry and was not given sufficient funds with which to do it. Although defendant knew that part of the jewelry was owned by her brother's wife, yet it had been pawned in his name by consent of his wife and she had by letter authorized the pawnbroker to deliver that part which defendant understood was owned by her sister-in-law to her husband. In these circumstances we think the plaintiff's assignor clothed her husband with apparent authority to induce another to redeem the property and hold the same as security for the money thus advanced. The defendant, not being a mere volunteer, became subrogated to the lien of the pawnbroker. ( Gans v. Thieme, 93 N.Y. 225.) The answer sufficiently pleaded the facts and it was not essential that it should have averred the legal conclusion as to defendant's rights by reason of having thus redeemed the property. The attention of the learned trial justice does not appear to have been drawn to this point until after the charge and just before the jury retired and then not pointedly. Down to that time the question litigated seems to have been concerning the authority of the husband to repledge the property, and that was the question submitted to the jury. By the last request to charge, however, we think counsel for defendant saved the rights of his client, and yet the point was not so clearly presented that the exception to the refusal to charge would be deemed reversible error were it not for the fact that there appears to be no good reason in law or justice why the defendant should not be deemed to have a lien on the jewelry for the moneys advanced to redeem the property together with interest thereon and be permitted to retain possession until she is reimbursed. She was not a wrongdoer. There is nothing to impeach her good faith in advancing the money to the extent at least necessary to redeem the jewelry. Plaintiff's assignor could not have obtained it from the pawnbrokers without paying the amount defendant paid, and there appears to be no reason why defendant should not be deemed subrogated to the lien of the pawnbroker. The last request to charge made by counsel for defendant was "that, under the circumstances of this case, Mrs. Hahn cannot repudiate her husband's act on the claim that it was unauthorized and at the same time retain the benefit received by her in the payment of the indebtedness for which the jewelry was originally pledged." This was declined, the court saying: "There is no such question in the case." Counsel for defendant should then have drawn the attention of the court to the answer and should have stated the point more plainly, for it is evident that from his presentation of the defendant's case throughout the trial and his motion for a nonsuit and direction of a verdict the court naturally did not appreciate that the point was in the case. However, we think the point was raised by the answer and the evidence and that the ends of justice require a new trial.
The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
O'BRIEN, P.J., PATTERSON, McLAUGHLIN and HOUGHTON, JJ., concurred.
Judgment and order reversed, new trial granted, costs to appellant to abide event.