
    [No. 22.
    Decided March 8, 1890.]
    M. Brotton v. Charles Langert.
    EVIDENCE — MEMORANDA-EXCESSIVE VERDICT.
    In an action by a mortgagee to recover damages for the conversion of mortgaged personalty, where the mortgagee testifies that he has received certain sums of money from the mortgagor to be applied on the mortgage debt, but is unable to state the amounts, it is error to permit him to read in evidence from a memorandum prepared by his clerk as to the items of payment made by the mortgagor, when he does not know how the clerk made up such memorandum.
    Where, in such action, the evidence shows the value of all the property covered by the chattel mortgage was about $1,200; that only a portion of such property was converted by the defendant, and that the value of the goods not taken by him was at least $700, plaintiff can only recover the value of the goods converted, not exceeding in amount the balance unpaid upon the mortgage, and a verdict for $1,000 will be set aside as excessive.
    
      Error to District Court, Pierce County.
    
    Action by Charles Langert against M. Brotton, to recover the sum of $1,000 damages for the taking and selling of certain personal property by defendant while acting as constable of Tacoma precinct in Pierce county. On the 25th day of May, 1887, one Westlin was indebted to plaintiff in the sum of $1,200. On that day he made and delivered to plaintiff a promissory note for that amount, payable on demand, and to secure its payment executed a chattel mortgage on certain liquors and furniture used in operating the Exchange Hotel in the city of Tacoma. The mortgage provided that Westlin might retain possession of the property until, default was made in payment, and that he might sell the liquors at retail for cash, account for the sales so made at the close of each day, and pay over the proceeds to plaintiff for application on the mortgage debt. On the next day after the execution of the mortgage, and for several days after, suits were commenced against West-lin by various parties, and on tbe second day of June, 1887, tbe defendant Brotton, under executions issued out of the justice’s court, took possession of tbe mortgaged property, closed tbe hotel and tore up tbe carpets.
    On tbe 17th day of June tbe defendant, having advertised tbe property for sale, sold it in parcels to various purchasers, and tbe property was removed from tbe premises. A small portion of tbe property was left by defendant unsold; and this plaintiff took possession of and sold for $325. He also received some $18 or $20 in addition thereto. Trial was bad before a j ury, and a verdict rendered for plaintiff for tbe sum of $1,000 damages.
    
      E. W. Taylor, for plaintiff in error.
    
      Judson, Sharpstein & Sullivan, for defendant in error.
   Tbe opinion of tbe court was delivered by

Hoyt, J.

Plaintiff in this action sought to recover damages for tbe conversion of certain articles of personal property upon which be had a mortgage. Defendant attempted to justify as an officer by virtue of certain executions against tbe mortgagor.

Numerous errors are assigned to tbe rulings of tbe court below, but in view of tbe unsatisfactory state of tbe record, and of a division of opinion as to what is made to appear therefrom, we shall only notice two of said alleged errors, and leave tbe questions presented by tbe others to be determined in some other case.. During tbe progress of tbe trial plaintiff admitted that be bad received certain sums of money from tbe mortgagor to be applied upon tbe mortgage debt, and when asked as to the amount of such payments stated~that-he-eauld not tell.

He was then shown a certain memorandum and asked if by tbe aid thereof be could get such amount? Upon examination it appeared that such memorandum was not made by himself but by bis clerk, and that be, witness, could not saj bow said clerk made up tbe same. Upon tbis appearing counsel for tbe defendant objected to tbe witness using tbe memorándum in giving bis testimony. Tbe court, however, against such objection, allowed tbe witness to read from such memorandum as to tbe items of payment made by tbe mortgagor. Exception was duly taken to such ruling and error assigned thereon.

The amount still due upon tbe mortgage was material to tbe plaintiff’s case, and as be bad testified that certain payments bad been made, it became material that be should show tbe amount of such payments. Therefore tbe evidence elicited from tbe witness by tbe aid of the memorandum was material. Was tbe memorandum such as tbe witness was authorized to read from to tbe jury? If it was not, it was error to allow tbe witness thus to use it.

It is not claimed that the paper used was such as, in itself, could be introduced in evidence, but it is contended that it comes within tbe rule which allows certain memoranda to be used by a witness to refresh bis memory when testifying. If tbis memorandum was of that class, it is possible that it was not error to allow witness to read therefrom, though tbe usual course is to allow tbe witness to read tbe memorandum and then to testify to knowledge of tbe facts as to which be has thus refreshed bis memory.

In our opinion, however, the memorandum in question was not shown to be such as could be used by tbe witness even for the purpose of refreshing bis memory. It comes within none of tbe three classes recognized by the writers on evidence, especially in view of tbe fact that after reading it tbe witness did not pretend to say that be then bad any personal knowledge of tbe statements therein contained. See 1 Greenl. Ev., §§ 486, 437.

Plaintiff introduced evidence tending to show that tbe value of all tbe property covered by bis mortgage was about twelve hundred dollars. But tbe uncontradicted evidence in the case showed that only a portion of such property was converted by the defendant, and that the value of those goods not taken by him was at least seven hundred dollars.

Under the pleadings in the case, plaintiff could only recover the value of the goods converted by the defendant, not exceeding in amount the balance unpaid upon his mortgage. See Sheehan v. Levy, ante, p. 149, decided at this session of this court.

Hence it follows that the verdict of one thousand dollars was much larger than the evidence warranted, and that defendant’s motion for a new trial on that ground should have been granted.

For the errors above stated the judgment must be reversed with costs and a new trial granted.

Anders, C. J., and Dunbar, Stiles and Scott, JJ., concur.  