By the Court. This was an action brought in the District Court of Ramsey county, by Bruggerman, the Plaintiff below, to recover possession of certain personal property. Passing over the objections of the Plaintiff in error to the complaint, which we think are untenable, we will consider some of those in reference to the admission of evidence, the charge to the jury, and verdict.
The Plaintiff claims title to the property in question “ by virtue of an instrument in writing,” (as it is called in the com*275plaint) executed by one Eothmund, July 14th, 1858, “ whereby the said Eothmund, then owner of said goods and chattels, for a valuable consideration, duly sold, assigned, transferred and set over to the Plaintiff the goods and chattels above referred to.”
Upon the trial, the Plaintiff offered in evidence to sustain this allegation, an instrument in writing, which was an ordinary deed of assignment of the property in question from Eothmund and his wife to Bruggerman. The Defendant objected to the introduction of this evidence, on the ground that “ the complaint alleges absolute ownership of the property in the Plaintiff, and also title under an instrument in writing executed to him by Eothmund;” whereas the instrument offered was executed by Eothmund and wife; and second, the conveyance was not absolute, but qualified, being a conveyance in trust, for the benefit of others.
This objection is not well taken. ■ The deed was proper evidence to substantiate the allegations of the complaint. If Eothmund was owner of the property, and had right to convey the same, the joining of the wife, although unnecessary, could not invalidate the conveyance by Eothmund; nor could the offer of such an instrument in evidence prejudice the Defendant. At most, it was mere surplusage. The Defendant objected that the complaint alleged the Plaintiff to be the absolute owner of the property, whereas the instrument offered showed him to be a qualified owner, or the conveyance a qualified one. This is' an error. We are not aware that the term “ absolute,” as used by the counsel for the Plaintiff in error, with reference to the words owner or ownership of the property in question, gives, any additional force to or qualifies those terms. If it does, it is sufficient to say that the term is not used in the complaint. But even had it been, the allegation would be supported by the instrument. If any thing, it is an absolute conveyance of the property. It contains no condition of defeasance, no provision for the assignor to resume control of the property or any part thereof. He directs the assignee to sell all the property, reserving only the right to the proceeds that might remain after paying his debts. The purpose for which the conveyance was made must not be con-*276founded with the fact of the conveyance itself — they are separate and distinct matters. This conveyance is likened to, or illustrated by, that of a mortgage, but they are widely different. The sale or conveyance itself in this case, is just as absolute as it would be were the Plaintiff to hold the property in his own right, and in the eye of the law he is the owner of the property, required however to dispose of it and apply the proceeds in accordance with the terms of the trust.
Rothmund was sworn as a witness on-the part of the Plaintiff, and among other things testified as follows, viz: “ I know the Plaintiff, Mr. Bruggerman. After the assignment Plaintiff took possession of the goods - and remained in the shop or store two or three days.”
On his cross-examination, the witness testified “ that, he, witness, remained in his shop where said goods were, and in possession of the same, from the time of said assignment until said Defendant took possession, and that the said Plaintiff, during all said time, was at Henderson, about seventy miles from St. Paul, and that said Henderson was Plaintiff’s place of residence.” This was all the evidence that appears in reference to delivery or possession by the Plaintiff.
The Court charged the jury “ that the Plaintiff is entitled to a verdict for a return of the property, and as the pleadings and proof stood, he was entitled to have the value of the property assessed at twelve hundred dollars.” To which the Defendant excepted.
In view of the pleadings and proof, we think this charge was erroneous. The answer is a denial of each and every allegation of the complaint. The allegation of ownership by the Plaintiff is therefore denied. In Bond vs. Corbett, 2 Minn. 248, it was held that “any thing that tends to controvert di/rectk/ the allegations in the complaint may be shown under a general denial.” The Defendant might therefore introduce evidence to show that Bruggerman was not the owner nor entitled to the possession, and that Rothmund was.
The testimony of Rothmund tended to show that there had never been a delivery of the property to, nor any possession by the Plaintiff, and the Defendant was entitled to have the fact submitted to the jury and passed upon by them. The charge *277of the Court took the case from the consideration of the jury, and directed them (in effect) to find' for the Plaintiff for a specified amount. If the jury should find from the evidence that there had been no delivery of the property to the Plaintiff, and no possession thereof by him, the action could not be maintained.
The jury assessed the value of the property in gross at $1200. The counsel for the Plaintiff in error claims that this was erroneous, and that the value of each article should have been found severally. Sec. 38, p. 561, Comp. Stat., provides that in certain cases the jury must assess the value of the property. Nothing is said as to assessing the value of each article sepárately, and a finding of the value in gross is a compliance with the terms of the statute. We have found no authorities based upon a like statute, which hold that a separate assessment of value is required. At all events, we do not see that the Defendant below can complain of the finding of the jury, as to the value. The judgment was that the Plaintiff recover of the Defendant the property described in the complaint, or in case a delivery thereof cannot be had, the value thereof, assessed-by the jury at twelve hundred dollars, &c. Under the New York practice, the successful party, if he had not possession of the property at the rendition of the judgment, could elect to take judgment for a return of the property or the value thereof. If the Defendant by his own acts, has rendered a return of the property impossible, it is not for him to object if he is required to pay the value thereof. Where a judgment is rendered for the Plaintiff, as in this case, it would seem that in case a part of the property can only be obtained, he should be permitted to elect to take that part, and a j udgment for the value of the remainder. And should he in such case demand that the jury assess the value of the property separately, we think he would be entitled to such direction from the Court. But in the case at bar, the Plaintiff makes no objection to the assessment, and there is no reason why the Defendant, who is adjudged to be the wrong doer, should have the same right of election.
The judgment below is reversed, and a new trial granted.