
    Mary Ann Hawver, Resp’t, v. Edmund R. Bell et al., as Executors, etc., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 30, 1894.)
    
      1. Evtobitce—Valuk.
    In an action for conversion, the price paid for the converted articles when new, where their age and condition are described, furnishes some evidence of their value at the time of their conversion.
    2. Appeal—Riest instance.
    Matters, which are not, by exceptions, presented for consideration as questions of law, cannot be raised, upon appeal, in the court of appeals.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made July 2, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.
    The action was originally brought against Calvin H. Bell; he having died during its pendency, the executors of his will were substituted as defendants.
    The nature of the opinion and the facts, so far as material, are stated in the opinion.
    
      John T. Shaw, for app’lt; T. F. Bush, for resp'ts.
    
      
       Affirming 46 St. Rep., 447.
    
   Earl, J.

The present defendants have been substituted in the place of their testator, against whom the action was originally commenced.

The action was brought to recover the value of certain personal property taken and sold by the testator, among which was an engine, thresher and cleaner. The testator took and sold the property, claiming the right to do so by virtue of a chattel mortgage. The plaintiff claimed that there had been no default in the mortgage, and that the note to secure which it was given was usurious and void. Upon the question of usury there was conflicting evidence. The testator claimed the right to seize and sell the property under what is called the safety clause in the mortgage, and there was conflicting evidence as to his right to proceed under that clause. The verdict of the jury in favor of the plaintiff settles the matters thus dependent upon conflicting evidence.

It appeared upon the trial that the engine, thresher and cleaner had been in the ownership and use of the plaintiff for several years before the seizure and sale by the testator, and that they had become considerably deteriorated by age and use. The plaintiff was permitted to prove, against the objection of the defendants, what these articles cost when new, and they now claim that such evidence was improperly received. The trial judge upon the trial, and in his charge to the jury,did not misapprehend the true rule of damages, and that is that the plaintiff was entitled to recover, if she proved her cause of action, the value of the property at the time of its conversion, with interest. The evidence was objected to “ as not establishing a proper rule of damages.” The judge ever-ruled the objection, saying that “it was some evidence of value,” and he did not at any stage of the trial rule that it furnished the measure or rule of damages. That the price paid for these articles when new furnished some evidence of their value at the time of their conversion, their age and condition being described, cannot be doubted.

The defendants are not now in a position to claim that there was not sufficient evidence of value to sustain the verdict, or that the damages awarded are excessive, because there are no exceptions presenting these matters for our consideration as questions of law. There was no motion to nonsuit the plaintiff. The true rule of damages was laid down-in the charge of the judge. The counsel for the defendants requested the judge to charge the jury “ that the purchase price of the engine and thresher is not the true rule of damages of the value of it,” and he responded : “ No, it is not, because there is no evidence that it has been deteriorated in value. It is only some evidence upon its value as a new and perfect machine.” There was no error here, and the law was correctly stated. To enable the defendants to get the benefit of the point their counsel now urges, they should, upon the trial, have moved for a nonsuit upon the ground that there was not adequate evidence of damages, or they should have raised the question by requesting the judge to charge the jury that the evidence of the purchase price-was not sufficient, standing alone, to show the value of the property at the time of its conversion, or they should have made some other request which presented the point to the mind of the judge.

We have considered the other exceptions to which our atienten has been called, and they are so clearly unfounded that they need no furthér attention now.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.  