56 Vt. 436 | Vt. | 1884
The opinion of the court was delivered by
The exception to the allowance of damages for the loss of, or failure to raise crops by reason of being deprived of the use of the ox in cultivating the land, is sustained. Such damages wore not the natural and proximate result of the attachment of the ox. The attachment deprived the plaintiff of the use of the ox so long as he was held under the attachment. What the use of the ox was worth during the time he was held under the attachment was the proper measure of the damages for such detention. If the plaintiff, to release the ox, paid for his keeping while attached, the use of the ox during that period was to be valued without reference to the expense of keeping him. If the defendant was at the expense of keeping the ox during such period, his use should be valued at such a sum as it was worth above the expense of his keeping. With the sum that was a fair equivalent for the use of the ox, the plaintiff could have procured the services of another team in cultivating the land, so that it would be as productive and beneficial as it would have been if lie had had the use of the ox for that purpose. The failure properly to put in his crops, and cultivate his land, was not a natural or proximate result of the attachment. It was tlie duty of the plaintiff to have supplied himself with the services of another team for carrying on his land. He could not allow his land to go uncultivated, and ask the jury to speculate as to what his crops would or might have been, if he had had the use of the ox: Tlie income from the land depended much upon after-cultivation, as well as upon the seed, the season, tlie harvesting, and many contingencies, as well as the proper cultivation of the land in the spring. It furnished no just and exact measure of the loss occasioned by the attachment of the ox. But fair compensation for the loss of
II. There was_ no error in the refusal, to admit what was said about turning out the other property attached, nor whether that interview between the parties was friendly or otherwise. The other property was not exempt from attachment. The plaintiff might be willing to turn that out, but his willingness to do so would furnish the jury no legetimate aid in determining whether he turned out the ox which was exempt from attachment. Nor would the character of this interview between the parties aid in this respect.
III. By pleading to, and justifying the separate trespasses charged in the two counts of the amended declaration, the defendant precluded himself from raising the question on the trial of of the issues thus tendered by him, of the right of the plaintiff to file the second amended count. Hence ho was not entitled to a compliance with his first and second requests. But the County Court told the jury that on the evidence no recovery could be
IV. The indemnifying bond, taken by the defendant from the judgment creditor at the time he paid to him the money received upon the release of the ox from attachment, was properly received in evidence. The bond indemnified the defendant from (he attachment of the ox. If the defendant had settled with the plaintiff for the wrongful taking of the ox, when the plaintiff paid him the money to obtain the release of the ox, it was not natural that he should have required a bond of indemnity against the very claim he had just settled, before he would pay the money so received to the judgment creditor. Prima facie demanding and taking such a bond under the circumstances was inconsistent with the defendant’s claim that he settled for the wrongful attachment of the ox. It was conduct apparently inconsistent with the defendant’s claim in regard to the settlement. It was open to explanation. Without explanation it tended to support the plaintiff’s contention that he did not settle his claim for the wrongful taking of the ox.
This disposes of all the exceptions relied npofi in this court.
Judgment reversed, and cause remanded for a new trial.