
    CHATTEL MORTGAGES — CONVERSION.
    [Cuyahoga (8th) Circuit Court,
    December 1, 1905.]
    Marvin, Winch an,d Henry, JJ.
    Economy Building & Loan Co. v. W. C. Newman.
    1. Revised Statutes 4155-1 (Law. 6852) as to Foreclosure of Mortgage on Household Goods Inures to Benefit of Single Man.
    Revised Statutes 4155-1 (Lan. 6852), which prescribes the formalities for the foreclosure of a chattel mortgage on necessary household goods, wearing apparel, etc., was passed for the protection of the mortgagor and should be liberally construed in order to promote its object, and its protective features will apply as well to the necessary household goods of a widower without any family as to those of a married man.
    2. Mortgagee cannot Take Household Goods Except as Provided by Statute, even though Mortgagor be without a Family and Goods be Stored.
    An action for damages will lie for the conversion of household goods, where the evidence shows that mortgagor, a widower, stored the same temporarily and left the city with the intent, however, of returning and keeping house in the near future, and that during his absence defendant mortgagee took possession of the same without following the statutory formalities for the foreclosure of a chattel mortgage on necessary household goods.
    •3. In Action for Conversion of Secondhand Chattels, Testimony of Plaintiff as to Value is Admissible.
    In an action for damages for the wrongful conversion of certain household goods, the market price thereof as shown by other evidence, will not be considered as the sole criterion of value, as they may have a peculiar worth to plaintiff, and it is not erroneous therefore to admit his testimony as to their value.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    Foster, Foster & Howells, for plaintiff in error.
    Richard H. Lee, for defendant in error:
   WINCH, J.

Wm. C. Newman, defendant in error, brought bis 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 loan 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 said furni-ture and went to Detroit to 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 his new wife went to the storage' warehouse to get his furniture, with which they proposed to go to house keeping, 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 based upon the loan company’s violation of the provisions of Bev_ St at. 4155-1 (Lan. 6852), which reads as follows:

"No chattel mortgage on the necessary household goods, wearing apparel or 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 mortgagee is in danger of losing his security, giving the facts upon which he relies, 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 not 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 and 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 to the chattel mortgage, but only specifies the-form, in which, and the procedure by which, those rights are to be worked out. Manifestly the statute was 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 loans from those who have money to lend. The statute, then, should be "liberally construed, in order to promote its object. ’ ’ Revised Statutes 4948 (Lan. 8463).

It contains no requirement that only married persons or those who are the heads of families 'shall be benefited by it. The language is: “person or family;” that includes persons of all descriptions, married and 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 can board as well as the other, but why emphasize by law the misfortunes of many single persons who are by their circumstances alone and not by choice, relegated to “furnished rooms.” On the other hand, as suggested by Judge Wilde, in the case of Brown v. Wait, 36 Mass. (19 Pick.) 470 [31 Am. Dec. 154], 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, would be a very strained construction of the statute.

But, it is said that these goods lost their character as necessary-household goods, when Newman stored them and left the city. The trial judge appreciated the force of this suggestion, but understood that any temporary abandonment of the goods to'have such effect, must depend upon 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 case, in which, among 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 necessary 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 be did not know whether or not there was any market for the goods and could not give their market valúe. 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 secondhand 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 [39 S. W. Rep. 724; 36 L. R. A. 862].

The authorities on this subject are collected in a note to the case of Watt v. Railway, 23 Nev. 154 [44 Pac. Rep. 423; 46 Pac. Rep. 52, 726; 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 secondhand household goods, and they gave their estimate of such market value.

Sedgwick on Damages, Sec. 243, says:

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

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 on this subject. You should consider what 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 no 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 morrgage, 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.

Marvin and Henry, JJ., concur.  