Robinson v. Keith

i. Appeal: error without prejudice. I. This property was held by Large, as the agent of the plaintiff, and was for sale by him on commission. On the trial the defendants proposed to prove, by said agent and other *322witnesses, that the value fixed by them in their testimony included the commission for selling, and that each article was therefore-worth that much less to plaintiff, and also the amount of such commission. This was objected to and excluded, and' to this ruling defendant excepted, and now assigns the same as error.

"Without entering into an-examination of the question made, it is sufficient-to say, that the uncontradicted testimony entitled plaintiff to fully as large a judgment as he recovered, after deducting the highest commission (twenty per cent). The property was shown to be worth .from $1,300 to $1,400; the judgment was $1,075.60; adding interest upon the lowest value of the property, according to appellant’s-claim and theory, would sustain ■the finding. Whereas, if governed by the decided preponderance of the testimony, the judgment is too small, even after deducting the alleged commission. We ‘will hot "reverse" a case and order a new trial for the rejection of testimony which, if admitted, could not change the verdict, and this conclusion we reach without conceding (which we are far from, doing) that the testimony was admissible.

2 dbtisvjs • demand. ' II. The other objections made to the judgment may be considered together. They are, first, that there should have been no judgment for the value of the property without proof of a demand for its return before suit brought by some one having authority to make the same; second, that the judgment should have been for the return of the property, or its value, if it could not be found; third, in rendering any judgment against appellants. This latter objection is based upon the thought, that the property was never in their possession, and want of knowledge on their part that the sheriff (their co-defendant) ever levied upon the same Under the writ.

*323Defendants attempted to justify under the writ of attachment. If the property did not belong to Large, or was not subject to. the writ, the taking was wrongful, and a demand .was not necessary. But a demand was made, by one professing to be plaintiff’s agent, who verified the petition in this cáse, and whose act they have recognized and adopted. If the officer refused to deliver upon such demand, he did so at his peril.

%tach?ñgtlcred- • The act- of the • officer was that of appellants. . They have appeared and justified under him. They started the, machinery of the law, by which this property was seized under the writ of attachment. His possession, for the purpose of this action, was theirs; though they may not have had actual knowledge of the seizure, the law will hold them liable to the same extent in this abtion as though having such knowledge.

4 _judg_ ' ment: Practice-Not* only so, but finally, there ' was no exception to the form of the judgment, nor motion to set it aside, nor for a new trial.

There was a general exception to the judgment, but the court was never asked , by motion or otherwise to enter the alternative judgment. Hnder this general exception appellant cannot be heard to allege objections to the forth, of the judgment. That plaintiffs established their right to recover as against any objection of substance, we entertain no doubt.

Affirmed. ■