Hetson v. Brolnitsky

Plaintiffs brought this action to- recover the sum of $300, the alleged value of certain goods purchased by them from the defendants, which goods it is claimed, and the court so found, that the defendants had surreptitiously removed from the store in which they were stored between the time of the purchase and the time defendants gave plaintiffs a bill of sale of them. Although the complaint sets forth a cause of action for conversion, the summons bears no indorsement authorizing the arrest and imprisonment of defendants, nor is the judgment one upon which an execution against the person can'issue. It is therefore nothing more than an ordinary money judgment. Whether or not the defendants had a right to take the goods at the time and in the manner they did is of not much importance in arriving at the justice in the case. The testimony shows, and this was believed by the trial justice, that the defendants removed the goods and that plaintiffs paid for them. Under such circumstances, right should prevail over technicalities, and the judgment should be affirmed.

Judgment affirmed, with costs.

(concurring). The defendants took part of the goods that they either had actually sold or that they agreed to sell. They took them by stealth. This would indicate they did not think they had a right to take them. The court has found that $300 worth

*1030of goods was taken. The defendants should pay for them, and I do not think that the judgment should be reversed on account of a mistake in the form of the action, when the question as to the proper form of the action is so close.

Substantial justice has been done, and the judgment should be affirmed.

LEHMAN, J., dissents.