Crumb v. Oaks

38 Vt. 566 | Vt. | 1866

The opinion of the court was delivered by

Peck, J.

The first exception taken by the defendant is to the refusal of the court to instruct the jury that they were at liberty to infer from that convei’sation between the plaintiff and his wife, a license to take the household furniture, although the plaintiff did not designate the articles he was willing she should take. We think the court was right in refusing this instruction, and in charging that it did not amount to a license. We think it is obvious that the language used does not import a license. We do not think that the plaintiff, at the .time, intended it as a license to be acted upon until something more definite was fixed upon as to what articles, and how much, of the household property she should have. The parties evidently understood that some further negotiation as to what furniture the wife •should have, was necessary, before she could act upon that indefinite ■conversation, so far as it related to the household furniture. The ■defendant and the plaintiff’s wife were not justified in putting any ■other construction upon it, and the jury would not have been justified in finding a license so manifestly contrary to the intention and understanding of the parties.

The defendant objects also to the rule of damages adopted by the ■court in the instructions t,o the jury, that is, the value of the property. It is insisted that the fact that the property went to the use of .the plaintiff’s wife, ought to have been considered in mitigation of •damages. It is true there are many cases where a defendant has wrongfully taken the plaintiff's property, and it has subsequently .gone in some legal way to the plaintiff’s benefit, it may be shown in the mitigation of damages ; as where it has been levied on and sold ■on execution against the plaintiff. But in this case we can not say that the property, by being used and appropriated by the wife, went -to discharge any legal obligation of the plaintiff. There is nothing in the case to show that the wife was justified in leaving her husband, The original taking by the wife and the defendant, being wrongful and against the will of the plaintiff, the subsequent use of it by the wife can not mitigate the wrong, as there is nothing to show a subsequent assent, or waiver of the tort, by the plaintiff. The willingness previously expressed by the plaintiff that his wife might have a part of the furniture, if it did not amount to a license, can not go in mitigation, at least not to mitigate the damages below the value of the property. What the plaintiff said or proposed in that conversation was a mere gratuity, and was revocable. Whatever seeming equity there may be in favor of the defendant, arising from the fact that the plaintiff had proposed to divide the furniture with his wife, that she probably would have had a portion of it had she called on the plaintiff for it, and that what was taken has gone for her use and benefit, these considerations can not in law avail the defendant to reduce the damages below the value of the property. As to the charge in relation to the cow and cosset lamb there is no exception.

Judgment affirmed.