13 Mont. 497 | Mont. | 1893
The instruction signifying to the jury the rule for the measurement of damages is the only assignment of error which we deem well founded. By this action plaintiff claims delivery of the possession of certain personal property, and damages for wrongful detention. In the usual form he alleges ownership of said property, viz: three head of workhorses, of the value of $160 (two being of the alleged value of $50 each, and the third $60); also one “ two-horse wagon” of the value of $30, and a set of double-wagon harness, valued at $20. The damage for wrongful detention of this property is alleged to be five dollars per day as the “ reasonable hire for the use” thereof during the time of wrongful detention, which was from May 31 to October 11, 1892.
At the trial plaintiff prevailed, recovering judgment for possession of said property, or the value, as alleged, if return could not be made, together with damages in the sum of $265 for wrongful detention. Thus the damage assessed for detention — about four months: — is considerably more than the whole value of the property, and it does not appear that the property at all deteriorated in value. There is no special damage alleged, but simply the rate “ for hire or use” thereof is alleged. If the property had been entirely converted, for instance, shipped out of the jurisdiction, sold, and the proceeds taken by defendant, so that return could not be enforced; or even if it had been absolutely destroyed in his possession, defendant’s case would have been better, for in that event the measure of damage would be the value, $210, and interest thereon at the lawful rate of 10 per cent for a little more than four months, for the conversion. (See Sedgwick and Sutherland on Damages, under topic of “ Conversion.”)
In the absence of extraordinary conditions, it would seem to be contrary to practical results that the net value for use or the earnings of this character of property for such a period of time should more than exceed the value of the animals, wagon, and harness used; and no extraordinary circumstances appear in the adjudication to enhance the damages above ordinary results. .
That part of the judgment which provides for recovery of damage must be reversed, and the case remanded for new trial on the question of damages, unless the parties by agreement fix the amount for which judgment as damages may be entered. In other respects the judgment is affirmed. Costs of this apappeal apportioned equally between the parties.
Reversed in part.