
    FORECLOSURE ON HOUSEHOLD GOODS.
    [Circuit Court of Cuyahoga County.]
    The Economy Building & Loan Company v. W. C. Newman.
    Decided, December 1, 1905.
    
      Necessary Household Goods under Chattel Mortgage Law — Benefits of Section 4155-1 — Not Limited to Married Persons or Heads of Families — Character of Goods not Lost by Temporary Storage — Value of Goods which Have Been Used — Evidence.
    1. The benefits of Section 4155-1 of the Revised Statutes, regulating procedure in the foreclosure of a chattel mortgage on the necessary household goods, wearing apparel and mechanics’ tools of any person or family, are not limited to married persons or heads of families.
    2. Household goods, formerly used by the owner, but temporarily stored by him with the intention of resuming their uso within a reasonable time, do not lose their character as necessary household goods within the purview of Section 4155-1 of, the Revised Statutes.
    3. The value of household goods which have been used is not limited by the market value of such goods as second-hand articles, although such value, if there is one, should be submitted to the jury. The owner should also be permitted to show what he considers them worth, based upon his knowledge of what they cost, the character of the goods, and the uses to which he applied them.
    Winch, J.; Marvin, J., 'and Henry, J., concur.
    Error to the court of common pleas.
   Wití. C. Newman, defendant in error, brought his action against plaintiff in error for damages for the conversion of certain household goods alleged to have been wrongfully taken from -him by said plaintiff in error. The plaintiff below recovered judgment against the defendant' below, and from the bill of exceptions filed with the petition in error in this court, it appears that Newman was the owner of said household goods which he had mortgaged to the loian company. ■ While said chattel mortgage was still in force, with ;a balance due on the note secured by it, Newman’s wife died, he had no children living with or dependent upon him, and he himself being sick,- he stored .staid furniture land went to Dfeitroit Ho recuperate, with the intention, however, of returning and resuming housekeeping, as he states. Newman was gone about six months.; when he returned to Cleveland his deceased wife’s sister accompanied 'him and he married her the day after they arrived' at Cleveland. When he and hi® new wife went to the storage warehouse to get -his furniture, with which they proposed to go to housekeeping, he found that it had been replevied by the loan company in an action prosecuted before a justice of the peace and disposed of by it in satisfaction of the mortgage debt, the conditions of the mortgage having been broken.

Thereupon this .action was brought, the unlawful conversion being baaed upon the loan company’s violation of the provisions of Section 4155-1 of the Revised Statutes, which reads as follows:

“No chattel mortgage on the necessary household goods, Wearing apparel, mechanic’s tools of any person or family, except chattel mortgages given to secure the whole or some part of the purchase price thereof, shall be foreclosed except in a court of record. No such ’ household goods, wearing apparel or mechanic’s tools covered by a chattel mortgage shall be seized or taken out of the possession of the mortgagor before foreclosure, except by a sheriff, or constable, and then only after the mortgagee or his agent has presented an affidavit to a judge of some court of record or justice of the peace, setting forth that the mortgage is due, or that the morgagee is in danger of losing his security, giving the facts upon which he rielies, and after obtaining an order from such judge or justice of the peace directing such sheriff or constable to seize such household goods, wearing apparel or mechanic’s tools and hold them subject to the order of the court,” etc.

The loan company admits that it did not comply with this law, but says that Newman was not1 entitled to the benefits of the law, because at the time the loan company took his goods Newman was a single man with no family ,a:nd the household goods taken, having been stored by him upon his departure from the city, were no longer necessary household goods, as specified -in 'the statute

It will be noticed at -the -outset of this inquiry that the statute under consideration is merely remedial in its nature; it in no wise affects the rights of the parties under the chattel mortgage, but only specifies the form in which and the procedure by which tho-se rights are to- be worked out. Manifestly the statute w-as passed for the protection of those who are so unfortunate as to be compelled to pledge their necessary household goods in -order that they may procure lp-ans from those who have money to lend. The statute, then, should be “liberally construed, in -order to promote its -object.” Section 4984, Revised Statutes -of Ohio.

It -contains no- requirement that only married persons or those wh-o -are heads of families -shall be benefited by it. The language is “person -or family”;’ that includes persons of all descriptions, married -or single, with or without families; -the disjunctive “or” makes -this perfectly clear. No- exemption is provided by this law and a reference to the exemption laws of the state throws no light upon the subject. Indeed, we can see no reason why a single man should not need household furniture as much as a married man. One oan bo-ard as well as the -other, but why emphasize by law the misfortunes of many single persons who are by their circumstances -alone, and n-ot by choice, relegated -to “furnished rooms.” On the other -hand, as suggested by Judge Wile-s, in the ease -of Brown v. Wait, 19 Pick., 470, it is not necessary for even the head of a family to own household -goods -and keep house, and to say that such goods are necessary-, only when one keeps house wo-uld be a very strained construction of the statute.

But it is s-aid that these goods lost their character as necessary household g'-oods when Newman stored them and left the city. The trial judge appreciated ithe force of this- suggestion, but understood that any temporary 'abandonment of the goods to have such effect, must depend up-on the intention of the owner'; so he permitted all facts and circumstances shedding any light upon that intention, -as well as the statement of the -owner with reference -thereto, to go to the jury under a charge which fully covered' the law of the ciase, in which, ampng -other things, he said;

“If you find from the evidence .that the plaintiff stored these goods with the intention of resuming the use of them again for household purposes within a reasonable time in the future, then you should find that the same continued to- be neeeessary household goods, otherwise they would cease to be necessary household goods after he stored' them, and hence would not be within the protection of this statute.”

The jury, under this charge and the evidence, found for the plaintiff, and we are not disposed to disturb its verdict.

Something was said upon argument as to- error in permitting the plaintiff himself to 'testify -as to the value of the goods taken, although it is not urged that the verdict was excessive. It is said that these goods having been used, were secondhand goods' and as such had a value in the market easily ascertainable. The defendant below was permitted to bring such market value before the jury, while the plaintiff stated that he did noit know whether or not there w,ais. any market for the goods and could not give their market value. He was permitted to say that he knew what they cost and what he considered them worth. He may not have shown very clearly that his furniture had a peculiar value to him, but we all know that furniture that we have been accustomed to use and wearing apparel that fits us, has a greater value to us than the price they will bring as second-hand articles. “In such cases it is evident that to refer to- the market as the sole standard of value, may work serious injury to the party complainant.” Jonas v. Noel, 98 Tenn., 440.

The authorities on this subject are collected in a note to the case of Watt v. Nevada Central R. R. Co., 62 Am. St. Rep., 772, 792.

The defendant was permitted to introduce several witnesses who qualified as to their knowledge of the value in the market of second-hand household goods, and they gave their estimates of such market value.

Sedgwick on Damages, Section 243, says:

“The market price is merely one of the commonest tests by which to -ascertain this value. It is by no- means the only one. ’ ’

Foster, Foster & Howells, far plaintiff in error.

B. H. Lee, for defendant in error.

The plaintiff’s evidence together with the defendant’s evidence as to the measure of damages, was ¡all submitted to -the jury, under a charge which seems to us 'eminently fair and expressive of the law on.the subject. Said Judge Lawrence, who tried the case:

“If you find for the plaintiff you will .award to him such damages, not exceeding the sum of $1,042.50, as you may find from the evidence he has sustained. Such damages, if you find for the plaintiff, would be the reasonable value of the goods taken and disposed of by the defendant less the amount of the chattel mortgage held by the -defendant, which is the sum of $123.90.
“If you find that the goods in question had a market value at the time they were sold, that value would govern; but if said goods have no market value then you should find what was the fair and reasonable value to the plaintiff of the goods sold, at the time they were sold, having in view the character of the goods and the purpose to which they were applied 'by the plaintiff. Testimony has been offered by both sides as to the value of these goods. You are not bound to adopt the opinion or estimate of any particular witness' oh this subject. You should consider wh-at has been said by them, but in determining the value, if you come to that question, you should also consider the kind, quality and description of these goods, the uses for which they were adapted 'and were applied and all the facts and circumstances in regard to them ¡as shown by the testimony. As I have said to you, you have nio right to take into- consideration any claim for damages of the kind alleged in that portion of the petition which I excluded from your consideration, to-wit, •the plaintiff’s claim that he was deprived of the use of this property and his alleged humiliation. I say to you, gentlemen, that issue is not in this case -and should not be considered by the jury. If you come to the question of the value of these goods you should deduct the amount of the chattel mortgage, because the interest of the plaintiff in the goods was not absolute but was subject to such mortgage, and the value of his interest in the goods would be the fair and reasonable value thereof less that to which they were subject; that is, this chattel mortgage. ’ ’

We find no error in the case and the judgment is affirmed.  