Opinion
No. 3983.
March 6, 1951.
Where the defendant proceeded with the introduction of evidence after the denial of his motion for a nonsuit an exception to such denial presents the question of whether upon the whole case there was evidence to sustain the verdict for the plaintiff. A mortgagee may maintain an action of conversion in his own name against an auctioneer who sold on the mortgagor's order certain fixtures, covered by the recorded mortgage, although he acted in good faith and without knowledge of the rights of the mortgagee. Evidence that the fixtures sold by the defendant were of the same type as those mentioned in the mortgage executed nine months before the sale justified the finding that they were the particular fixtures covered by mortgage, where there was no evidence of replacements during that period. The amount of damages to which the plaintiff is entitled to recover for such goods wrongfully sold is their value at the time of conversion with interest to the date of judgment. In such case, evidence of the written record kept by the auctioneer seller showing the price received for each article was admissible and warranted the Court's finding as to the amount of damages sustained by the plaintiff.
ACTION, FOR WRONGFUL SALE of certain chattels, fixtures and equipment by the defendant as auctioneer. Trial by the Court resulting in a verdict for the plaintiff in the sum of $500 for the fair value of the fixtures sold.
On August 6, 1947, Paul W. Robinson and Elmire M. Robinson mortgaged to the plaintiff certain fixtures, equipment, machinery and stock-in-trade located in a certain market and luncheonette in Hudson which they purchased that day from the plaintiff. This mortgage was duly recorded. Paul W. Robinson operated this business until May 15, 1948, when the defendant per order of said Robinson sold the stock-in-trade, fixtures and equipment at public auction. There was due plaintiff at the time about $5,800 on the note secured by this chattel mortgage and other security. Plaintiff received none of the proceeds of the sale.
At the close of plaintiff's evidence, the defendant moved for a nonsuit. The Court took the motion under advisement and ordered the case to proceed. The defendant's exception to the denial of his motion for nonsuit was reserved and transferred by Wheeler, J.
Other facts appeared in the opinion.
Russell H. McGuirk for the plaintiff.
Guertin Leahy (Mr. Guertin orally), for the defendant.
The defendant having proceeded with the introduction of evidence after the denial of his motion for a nonsuit, the question before us on his exception is whether upon the whole case there was evidence to sustain the verdict for the plaintiff. Lane v. Manchester Mills, 75 N.H. 102, 106; Leonard v. Manchester, ante, 115, 117. We think there was.
The plaintiff as mortgagee under this recorded mortgage had sufficient legal interest in the fixtures covered thereby to maintain an action for conversion against any one who sold them without his consent. Knapp v. Hobbs, 50 N.H. 476; Cf. Munsey v. Company, 91 N.H. 51, 54. His action can be maintained against an auctioneer who sells such property on order of the mortgagor even if he does so in good faith and without knowledge of the rights of the mortgagee. Levy Bros. Adler Rochester v. Karp, 209 N. Y. S. 720; 5 Am. Jur. 489; 7 C. J. S. 1270.
The defendant at the time of sale made a written record of the description of the articles sold. This record was introduced in evidence. It showed that most of the fixtures sold at the auction, held less than nine months after the execution of the mortgage, were of the same type as those described in plaintiff's mortgage. There was no evidence that they had been replaced by Robinson during that interval. This was sufficient to warrant a finding by the Court that they were the fixtures covered by the mortgage. 53 Am. Jur. 942; see Exchange State Bank v. Occident Elevator Co., 95 Mont. 78.
The plaintiff was therefore entitled to the value at the time of conversion of the mortgaged fixtures converted with interest to the date of judgment. Caron Enterprises Inc. v. Company, 87 N.H. 371, 373.
The written record kept by the defendant at the time of the auction also showed the price received for each article. This evidence properly admitted in the discretion of the Trial Court was sufficient to warrant the Court's finding as to the amount of damages sustained by the plaintiff. Kelsea v. Fletcher, 48 N.H. 282, 284; Flinn v. Springsteel, 191 App. Div. (N.Y.) 769; Strimling v. Indemnity Company, 176 Minn. 26; 31 C.J.S. 897; 20 Am. Jur. 340.
The order must be
Judgment on the verdict.
All concurred.