The herald., 1894-06-27
ROUGH ON HENRY SUSSE|ND,
Judge Shaw Renders Judg-
ment for $4,000.
The Court Says He and Mrs. Wagner
Acted in Collision.
A Large Amount of Goods Concealed
by Them-Sansstionsi Conciusion
of the Wagner Insolvency
Proceedings.


terday by Judge Shaw which gives q
sensational termination to it and puts
Henry Susskind and Mrs. Wagner ia an
awkward position.
1t was an action by A. |. Hall. as as-
signee in insolvency Of L. NJ. Wagner.
to recover the value OF goods which it
is alleged belonged to Mrs. Wagner at
the time she was adjudicated to be an
insolvent debtor. II ia alleged that she
j concealed large portion OF her stock oil
goods, 20 as to prevent them coming to
the han de OF the assignee, and that sf-
! forwards the goods were received by the
defendant acting in collusion with her,
and that he sold large quantity of
! them. The action was brought to re-
cover the value OF the goods thus sold.
The defendant did not testify, nor did
he offer any testimony on his own be-
hall, but rested the case on the testl-
mony and evidence offered by the plsin-
tiff. The evidence is altogether circum-
stantial, but it is of so convincing q
character, Judge Shaw says in an opin-
! ion fled as to leave no doubt in the
mind OF the court that large amount of
| goods were concealed by Mrs. Wagner,
received by the defendant with the
knowledge of the trYe ownership, and
afterward sold by him, substantially az
alleged in the complaint.
The court continues: 1.-THE difficulty
in the case is to determine the precise
amount of the goods-a matter which
the evidence leaves almost entirely to
inference or conjecture. The circum-
stances. however, are such that tho bur-
| IAx IS l. 49, l.. xl-f. 4
ant, and it is his fault that the uncer-
tainty exists. The defendant bought OF
the assignee all the goods that the as
slgnee found in the stock at the time it
came into his hands, and with these
goods were mingled the goods previously
concealed by Mrs. Wagner. so that the
two portions OF the goods could not be
distinguished one from the other, and
with this combined stock the defendant
carried ON retail jewelers. business
from November Is, 1892, to July 26,
1893. At the last named date
all OF the stock that WAS lett on hand
was seized by the sheriff on attach ment
and the goods so seized were aftsrward
recovered by the assignee as a part OF
the property OF the insolvent. This re-
covery was had in suit of claim and
delivery begun By the defendant against
the sheriff, in which the plaintiff here
INTERVIEWED. The recovery included the
entire remaining stock, both of the con-
cealed goods and OF the goods previously
bought by Susskind Of the aesignees.
1t lie we'll settled principle of the law
that where ore wilfuily mixes another's
goods with his own in such manner
that they cannot be distinguished, the
other party may replevin the whole
mass. and il the goods arc shown to be
30 mixed the burden OF proof is thrown
upon the party who produced the confu-
sion to show what part of the mixed
goods is hs own and to separate them
from the rest"
There is no doubt that this rule OBJ.
tains in cases in replevin; but is it the
rule where, as in this Gaze, the plaintiff
does not see in -eplevin but in trover;
where he does not GEEK to recover the
possession of the goods, but alleges q
conversion and sues for the value? OF
all the cases cited in the books I find
but two which hold that he may do this.
These are Hesaelting VS.. Stockwell. 80
Me-, 237. and Lewis VS.. Jones, 80 Am.
Dec, $50. In neither case ia there any
discussion OF the distinction between
trover and replevin nor any reason given
why the rule should be the came in
both. That there ia such distinction
between the two actions. and that it is
such as to make the rule stated inappli.
cable to cases OF trover aeems clear to
my mind. In trover the plaintiff asks
damages of the defenpant for the con-
version by the plaintiffs property to his,
the defendants use. The measure of
damages in trover ia the value of the
property converted either at the time of
the conversion or at any time before YER
dict, at the option of the plaintiff. In
this case the conversion takes place
at the time the defendant received
the goods and not at the time he sold
them. "Where one receives the prop
erty by the tortious act of third per-
son, such taking possession is an act
of conversion, and il such person after
ward sell the property 80 received the
conversion occurs at the time he re-
ceived the possession and not at the time
of the eale." Harpending We. Meyers,
IS Cal. 5Gl. When the defendant re-
ceived the goods they we're not mingled
but they were converted to his use. |
do not see how the fact that he after
ward mixed them with other goods
which he rightfully owned should have
the effect to increase the value of the
goods converted. or give the plaintiff the
right to recoy err the value of the entire
mass OF goods 80 mixed. l find only
one authority expressly upon this point.
This is the case of Moody We. Whitney,
So Me. 174 (6l Am. Dec 241., } in which
the court says:
eff the mixture lie indistinguishs BILE,
not capable of just division according
to the original rights of each, then tn
party who causes the wrongful mixture
must bear the whole loss But if be
who would be entitled to the whole OF
the mixture makes no attempt to obtain
the whole, but resorts to his action Of
trover, the damages would be. not the
value of all that which he might right
fully take, but only of that which WAS
wrongfuly converted by the act OF ming
ling" think this is the most just and
logical doctrine, and that it ought to
govern in this case.
But in view of the fact that the de-
PENDANT has not Heen fit to offer any evil
dence, nor any explanation of the ci r.
cumstances which point unmiBtakably
to him as participation in the sale Of
the concealed goods, with knowledge OF
the facts. and that he is the person no
knows more about the matter than q ny
other person except J. B. Wagner, the
husband of the insolvent; that ne had
bookkeeper who should also know much
about the amount of sales, and that he
brought forward none OF these persons
to teBtify for him. think that tn g evil
dence of the plaintiff should DO cons trued