36 Wis. 115 | Wis. | 1874
1. No exceptions were taken to the charge which the court gave the jury in respect to the issue of alleged fraud in the sale of a portion of the property in controversy by
2. A question is made as to the correctness of the rule of damages laid down by the court. The following instruction proposed by the defendant was refused: “ The greatest damages the plaintiff is entitled to recover in any event, cannot exceed the value of the property at the time it was taken, and interest to date.”- The jur}T were instructed, if they found for the plaintiff, to assess as damages for the detention of the property, besides interest on the value of the grain, “ the value of the use of the wagon and buggy, taking into account what part of the year the same could be used,” and the value óf the use of the reaper for the seasons of 1872 and 1878.
Remembering that the judgment is for the. value of the property at the time it was seized under the attachment, a little reflection will satisfy the mind that an erroneous rule of damages for the detention of the property was adopted. The value
Were this an action of trover, the rule of damages would be, the value of the property when seized and interest thereon to the time of-trial. By electing to take judgment absolutely for the value of the property and the damages assessed by the jury, as he may do under the statute (oh. 124, Laws of 1869 ; Tay. Stats., 1504, § 39), the plaintiff has made this action perform the functions and accomplish the results of an action of trover. Regarding the substance rather than the form of the proceeding, as important and controlling, is there any good reason for applying a different rule of damages in this action, from that which would be applied were it, in form, an action of trover ? We think not, and must therefore apply the same rule.
This case is decided upon its own peculiar facts, and must not be regarded as settling, or as attempting to settle, the rule of damages in other actions of replevin in which the facts are not the same as in this case.
Our conclusion is, that the plaintiff was only entitled to re
Following the practice adopted in Kavanaugh v. Janesville, 24 Wis., 618, the judgment of this court is, that if the plaintiff will remit such excess, and pay the costs of this appeal, the judgment of the court below is affirmed. Failing to do so, the judgment is reversed, and a new trial ordered.
By the Court. — Ordered accordingly.