3 Sandf. 614 | The Superior Court of New York City | 1850
We think, as we intimated upon
Instead of asking for a return of the property replevied, the defendant elected to take judgment for its value. The section of the statute (2 R. S. 531, § 55,) which gives this election, is silent as to the damages; but the understanding of the profession undoubtedly is, that whether the judgment be for a return of the goods, or for their value, the right to damages equally attaches. We are satisfied, upon consideration, that this construction may reasonably be given to the general words in the preceding 53d section; and it appears to be sanctioned by the opinion of Ch. J. Nelson, in Snow v. Roys, (22 Wend. 604.) It is indeed evident, that in whichever form the judgment is entered, damages are in most cases necessary to be given, in order to complete the indemnity to which the defendant is entitled. In the present case, the referee has allowed damages in addition to the value of the property; and neither party complains that he has done so, yet both, although upon very different grounds, insist that he has erred in computing the amount for which judgment ought to be rendered. He has assessed the value according to the market price of flour at the time the defendant made his election, and has allowed, as damages, interest upon the sum thus ascertained from the time of the replevy. The counsel for the plaintiffs, however, contends that the value ought to be computed by a reference to the market price of the flour when replevied; and the counsel for the defendant, that the value is properly stated,
The argument involves a general question which in the first instance we shall endeavor to solve; and shall then inquire whether the solution which we adopt is consistent with the adjudged cases and with the provisions of the statute.
The general question which we deem it necessary to examine is, what is the proper measure of damages, “ The rule for ascertaining the sum which the injured party ought to recover, in all cases, where personal property is wrongfully taken or detained, whether by force, by fraud, or by process of law.” It is a question of wide extent and corresponding interest, and we are not without the hope, that the observations which we intend to make may have some tendency to redeem this branch of the law from its present state of confusion and uncertainty. Unless we are greatly mistaken, there are certain indisputable rules, or more correctly, principles of natural justice, by the application of which the amount that the injured party ought to recover, may, in all cases, be readily and certainly determined. Setting aside the exceptional cases in which exemplary damages maybe justly claimed and given, and confining ourselves to those in which the remedy sought is simply pecuniary, the principles which, as it seems to us, are manifestly just, and universal in their application, are, that the owner, to whom compensation is due, must be fully indemnified, and that the wrongdoer must not be permitted to derive any benefit or advantage whatever from his wrongful act. It may frequently happen, that these principles, when applied, will coincide in the result; but there are many cases in which it will be seen that the application of both is necessary. An indemnity must always be given to the injured party; but it is not, in all cases, the measme of the damages which the wrongdoer ought to pay.
First, the injured party must be indemnified, he must be
Then what are the rules ? What the process of computation by which the just amount of the indemnity claimed may be ascertained? We reply, with some confidence, that it will be ascertained in all cases, by adding to the val/ue of the property when the owner is dispossessed, the damages which he is proved to home sustained, from, the loss of its possession. It is when the property is wrongfully taken or detained, that a right of action accrues to the owner. He is then entitled to demand a compensation for his loss, and if his demand is then complied with, it is plain that the value of the property at that time, by which we mean its market value, the sum for which it could then be sold, would constitute, at least, a portion of the amount that the wrongdoer would be bound to pay. This sum may, therefore, be fairly considered as a debt then due, and, consequently, interest, until the time of trial or judgment, must in all cases be added to complete the indemnity. It is not, however, in all cases that the value of the property when the owner is dispossessed is to be determined by a reference to its market price, nor in all that the damages, ivhick are to be added to the value, are to be limited to the mere allowance of interest. In most cases, the market value of the property is the best criterion of its value to the owner, but in some its value to the owner may greatly exceed the sum that any purchaser would be willing to pay. The value to the owner may be enhanced by personal or family considerations, as in the case of family pictures, plate, &c., and we do not doubt that the “ pretium affectionis,” instead of the market price, ought
The observations that have now been made are sufficient to explain our views as to the proper mode of securing an indemniinj to the injured party; but the amount of the judgment that ought to be rendered in his favor, even when no exemplary damages are claimed, as we have already stated, is not necessarily to be limited to an indemnity. In many cases, it may not be right that the wrongdoer should be subjected to cumulative damages as a penalty for his misconduct; but it is clear, that he ought never to be permitted to derive an actual benefit from his wrongful act, a gain which is the fruit of his own injustice. He must in all cases, be compelled to refund. Hence he must, in all cases, be liable to the extent of the value of the property when taken or
The present case affords another illustration of the same truth, that, even when vindictive damages are not claimed, those which are given in many cases, may and ought to exceed a mere indemnity. Had the defendant retained the possession of the flour, which was replevied, it is morally certain that it would have been sold by him, under the execution in his hands, at the same time, and at the same price, as the residue of the flour upon which he had levied.' Hence we should give to him, or more properly to the judgment creditor whom he represents, a full compensation for the actual loss, by assessing the value of the flour in controversy, at the price for which it would have been sold, had it not been replevied, and by allowing, as damages, interest upon that amount from the time the sale would have been made ; nor could any objection be made to a judgment founded upon this basis, except that it would leave to the
Even where the market value of the property, when the right of action accrued, would more than suffice to indemnify the owner, it is not, in all cases, that the liability of the wrongdoer should be limited to that amount. It is for the value that he has himself realized, or might realize, that he is bound to account, and for which judgment should be rendered against him. Hence should it appear in evidence upon the trial, that he had in fact obtained upon a sale of the property a larger price than its value when he acquired the possession, or that he still retained the possession, and that an advance price could then be obtained, in each case the increase upon the original value, (which otherwise would remain as a profit in his hands,) ought to be allowed as cumulative damages.
We think it follows, from the observations that have been made, and the illustrations that have been given, that the principles which we have stated as those which ought to determine the amount of the judgment, will be carried into effect in all cases by adding to the value of the property when the' right of action accrued such damages as shall cover, not only every additional loss which the owner has sustained, but every increase of value which the wrongdoer has obtained, or has it in his power to obtain; and we are satisfied, after much consideration, that there is no other mode of computation by which as a universal and invariable rule the same result can be attained.
It seems to us exceedingly clear, that the highest price for which the property could have been sold at any time after the right of action accrued, and before the entry of judgment, cannot, except in special cases, be justly considered as the measure of damages. When the evidence justifies the conclusion that a higher price would have been obtained by the owner had he kept the possession, or has been obtained by the wrong-doer, we have admitted, and shown that it ought to be included in the estimate of damages; in the first case, as a portion of the indemnity to which the owner is entitled, and in the second, as
The calculation of damages according to the value of the property at the time the amount of the judgment is to be settled, is liable to similar objections. As a rule, it is susceptible only of a very partial application. For the reasons that have already been given, it is applicable only where it appears, that the possession would have been retained by the owner, or has been retained by the wrongdoer; or should it be thought that its application may be extended beyond these cases, upon the ground that the wrongdoer is hound to retain the possession so as to enable him to return the property when lawfully demanded by the owner, it must still he restricted to the cases in which the property continues to exist, and has advanced in value. Without this restriction, the application of the rule would lead to palpable injustice, since if we are to hold that it is to be applied in all cases as the true and only measure of the indemnity to which the owner is entitled, it casts upon him the whole risk of the destruction or deterioration of the property, when proceeding from inevitable accident without any negligence or fault imputable to the wrongdoer. Hence, if the goods wrongfully taken or converted are perishable in their own nature, and at the time of trial from an inherent vice have wholly lost their value, the jury are to be instructed that nominal damages only can be given. Indeed, the learned counsel for the defendant candidly admitted, that the consequences which have been stated would follow, when the defendant in replevin elects to take a judgment for the value of the property, instead of its return, if the word “ value” as used in the statute must be construed to refer
We are next to inquire, whether the principles which we have laid down as properly regulating and fixing the amount of a recovery, in all the cases which this discussion embraces, are consistent with, or dedncible from the adjudged eases in England and in the United States. That they are explicitly stated in any reported case, we shall not venture to affirm; but that they are implied in many, and are consistent with the judgment actually rendered in most of the cases, we are fully convinced. There is, we confess, a considerable want of harmony in the decisions, nor shall we deny that there are some -which must be rejected as wholly anomalous, if the law is ever to be settled in conformity to the views which we have expressed; but it is when the law has been rendered uncertain by the conflict of decisions, that it becomes emphatically the duty of judges to recur to those first principles of justice which lie at the foundation of positive law, and by the application of which its existing uncertainty may, generally speaking, be effectually removed. The law, (in the beautiful language of Lord Mansfield,) “ works itself pure” by the fresh streams which it draws from its original fountains of equity and reason.
In trover, the general rule, both in England and in the United States, undoubtedly is, that the current or market value of property at the time of the conversion, with interest from that time until the trial, is the true measure of damages. (Amery v. Delamere, 1 Strange 505; Fisher v. Prince, 3 Burr. 136; Finch v. Blount, 7 Car. & P. 478; Cooke v. Hartle, 8 Car. & P. 568; Mercer v. Jones, 3 Camp. 476; Shotwell v. Wendover, 1 J. R. 65; Wilson v. Conine, 2 Ibid. 280; Kennedy v. Strong, 14 J. R. 128; Hallett v. Novion, Ibid. 273; Dillenbach v. Jerome, 7 Cow. 294; Baker v. Wheeler, 8 Wend. 505; Stevens v. Son, 2 Hill 132; Watt v. Potter, 2 Mason 76; Kennedy v. Whitmore, 4 Pick. 466; Sargent v. Franklin Ins. Co., 8 Pick. 90; Johnson v. Sumner, 1 Met. 172; Barry v. Bennett, 7 Ibid. 354; White v. Webb, 15 Conn. 502; Jacobs v. Laussat, 6 Sergt. & Rawle, 350; Lillard v. Whitaker, 3 Bibb, 92; Sproule v. Tor, 3 Litt. 25.)
Even where no special damages are laid in the declaration, the market value of the property at. the time of its conversion is
It is evident, from this review of the cases, that so far as the decisions have gone, the rules that control the estimate of damages in trover, correspond entirely with those which we have endeavored to show ought upon principle to be followed.
It has, however, been insisted by the counsel for the defendant, that there is a class of cases in England, and in this state, which fully bears out the assertion, that the true measure of damages in trover, is not the market value of the property at the time of its conversion, but its highest value at any time between its conversion and the trial, and we entirely agree with the counsel, that if this is a just criterion of the damages which the
Our objections to considering an intermediate higher value as an invariable rule of damages, have already been stated, and need not be repeated. It is perfectly just, when the enhanced price has been realized by the wrongdoer, or it is reasonable to believe would have been realized by the owner, had he retained the possession; but, in all other cases, damages founded upon such an estimate, are either purely speculative, or plainly vindictive. They are conjectural and speculative, when it is barely possible that the owner, had he retained the possession, would have derived a benefit from the higher value. They are vindictive, when it is certain that no such benefit could have resulted to him. It is however proper, and perhaps necessary, to examine the cases that have been cited and relied on, since the construction which has been given them by the defendant’s counsel is by no means novel, nor unsupported by authority. It will appear, we think, that the true import of the English decisions has been greatly -misunderstood, and that they by no means justify the conclusions which have been drawn from them.
The cases in England are Fisher v. Prince, 3 Burr. 1363; Whitten v. Fuller, 2 Black. R. 902; Shepherd v. Johnson, 2 East. 211; McArthur v. Seaforth, 2 Taunt. 257; Harrison v. Harrison, 1 Carr. & P. 412; Greering v. Wilkinson, 1 Carr. & P. 625; and then in our own reports, West v. Wentworth, 3 Cowen, 82, and Clark v. Pinney, 7 ibid. 681.
Fisher v. Prince and Whitten v. Fuller were both actions of trover, and they have been referred to by the learned judge who delivered the opinion of our supreme court in West v. Wentworth and in Clark v. Pinney, as establishing, that in trover, where the chattel is not of a fixed or determinate value, the damages are not, in all cases, confined to the worth of the article at the time of its conversion, but may be enhanced according to its increased value subsequent to that time. (7 Cow. 694; 3 ibid. 83, per Sutherland, J.) We admit the fair
In Fisher v. Prince, the reporter states that the application was denied upon the particular circumstances of the case, such as the complicated quantity of the goods demanded, and the uncertainty
There is a modern case upon the subject, not cited upon the argument, which throws much light upon the decisions in Fisher
There is another class of cases, however, the next to which we shall refer, which with some appearance of reason has been relied on in support of the doctrine. Shepherd v. Johnson, McArthur v. Seaforth, and Harrison v. Harrison, belong to this class. The action in each of these cases was debt, not trover, and in each the question decided arose upon the assessment of damages for the breach of the condition of a bond. We lay no stress, however, upon this distinction, but admit that if the rule which was followed in estimating the damages was
The bond in these cases was conditioned to replace upon or before a given day, a certain amount of government stock, lent by the plaintiff to the defendant. The stock was not replaced, and it was held, that in estimating the damages, the plaintiff was not limited to the market value of the stock at the day upon which it ought to have been replaced, but might justly claim the higher price which it bore at the day of trial; but in neither of these cases was it suggested or intimated by the court, that the plaintiff could recover the highest price which the stock had borne, at any day during the interval between the breach of the contract and the trial; and in truth this position would have been inconsistent with the grounds upon which the actual decision was placed. Such a claim was indeed advanced by the counsel for the plaintiff, in McArthur v. Seaforth, in his opening argument, but it was explicitly abandoned in his reply, and was passed over without notice by the court, in giving its judgment.
We do not at all doubt, that w'here the contract is for replacing stock previously lent, the plaintiff, when its breach is admitted or proved, may elect to claim the market price of the stock at the day of trial, as the just measure of his damages, and when the true grounds of the decision we are now considering shall be stated, it will be seen that they are entirely consistent with the views which we have already expressed. These grounds were, first, that as chancery may decree the specific execution of a contract for replacing stock, and the defendant, when such a decree is made, to enable himself to perform it, must of necessity purchase the stock at its then market price, he can have no right to complain when he is compelled to pay the same sum as damages by the judgment of a court of law; and second, that as stock is usually held not for sale, but as a permanent investment, it is a reasonable presumption, that had it not been replaced at the stipulated time, the plaintiff would have retained its posses
The last of the English cases, and the only one that bears the resemblance of a direct authority, is Greening v. Wilkinson. It is, however, only a nisi prius decision, and the report is not only brief, but we apprehend imperfect; material facts seem to be omitted, nor is it stated what was the verdict finally rendered. The action was trover for East India Company’s warrants for cotton, and evidence was given that cotton was worth six pence per pound when its delivery was demanded, and was worth 101 pence at the day of trial. The counsel for the plaintiff contended, relying upon the stock cases, that the price at the time of the verdict was the true measure of damages, while the counsel for the defendant urged the authority of Lord Ellenborough’s decision in Mercer v. Jones, (1 Camp. 479,) as proving that damages could not exceed the value of the property at the time of its conversion. Abbott, Ch. J., (Lord Tenterden,) is reported to have said that Mercer v. Jones was hardly law, and that in his opinion, “ the price of the article on the day of conversion, is by no means the criterion of the damageswhich it certainly is not, where special damages in addition are proved; but the learned judge further said, “ that the amount of damages is for the jury who may give the value at the time of the conversion, or at crny subseguent time, in their discretion, because the plaintiff might have had a good opportunity of selling the goods, if they had not been detained.”
Now as it is not stated that there was any evidence that the cotton had borne a higher price at any intermediate time than on the day of trial, and the claim of the counsel of the plaintiff was limited to the price on that day, these remarks seem to have been wholly irrelevant; but admitting them to have been rendered pertinent by evidence not stated by the reporter, they are susceptible of an interpretation entirely consistent with our own
It appears then, from this review of the English cases, that there is no evidence that in a single case an intermediate higher value not maintained to the day of trial has been adopted as the measure of damages, and that in McArthur v. Seaforth, the single case in which such a claim appears to have been made, it was so plainly discountenanced by the judges, that it was finally abandoned by the counsel.
It is said, however, that whatever may be the case in England, or in other states of the union, the law in this state is settled that in an action upon a contract for the sale and delivery of goods, upon a stipulated day, if the consideration money has been paid in advance, and the plaintiff proves his case, he is not limited in the measure of damages to the value of the goods on the day when they should have been delivered, but is entitled to recover the highest price for which they could have been sold at any time between the breach of the contract and the day of trial; and it has been strongly insisted, that the principle upon which the decision has been made is applicable to all cases where the property, which is the subject of controversy, has been 'wrongfully taken or detained, nor shall we deny that this analogy exists. We shall not deny that an owner who has been unjustly deprived of the possession of his goods zis entitled to as full an indemnity as a purchaser.
The decisions of the supreme court in West v. Wentworth, and in Clark v. Pinney, have been confidently appealed to, as having sanctioned the doctrine in question, and it must be
In West v. Wentworth, there were two contracts, founded upon a consideration admitted to have been received, for the delivery of salt; the first parcel was to be delivered in June, 1820, and the second in -October, in the same year, and the cause was tried in July, 1823. In Clark v. Pinney the contract also related to salt, which was agreed to be delivered on the 15th April, 1821, and the cause was tried in May, 1825. In each case it was proved, that the maximum price of salt, in the interval between the time fixed for its delivery and the day of trial, was in the autumn of 1822, and in each the judge who tried the cause, instructed the jury, that the maximum price was the measure of damages which the plaintiff was entitled to receive; and the supreme court, upon an application for a new trial, held, that the rule of damages thus adopted was correct upon prin
The reason of the distinction between the cases in which the goods purchased are to be paid for only upon delivery, and those on which the contract price is advanced, is stated to be, that, in the first case, the vendee having retained the possession of his funds might have applied them, when the contract was broken, to the purchase of other goods of the like description and quality, and thus have secured to himself the advantage of their subsequent rise in value, and consequently when he has neglected to do so the loss that he sustains must be ascribed to his own fault; Avhereas the vendee who has parted with his funds by advancing the price has disabled himself from pursuing a similar course, so that his loss of a gain, that might otherwise have been realized, may be justly considered as a direct1 consequence of the nondelivery of the goods. It is manifest, hoAvever, that this reasoning implies that had the goods been delivered the gain would have been made, and is, therefore, only applicable when this fact is established by proof, or may be justly presumed; and Ave deny that this presumption can reasonably be made when the goods are purchased for sale, and are liable to injury from the lapse of time, unless the increased value set up as the measure of damages has occurred within a short period after the time when the goods should have been delivered. It may be perfectly just, that the v-endee, who is not*to pay for the goods until the delivery, should be limited in the recovery of damages to the difference between the contract price and the market value of the goods on the day fixed for their delivery, but it by no means follows, nor, without a violation of principle and a defi
The most recent case in the English reports is Startup v. Cortuzzee, (2 Cr., Mees. & Rosc. 165,) and it stands in direct opposition to West v. Wentworth, and Clark v. Pinney, and consequently to Gainsford v. Carroll, if the dicta of the court in that ease deserve the name of authority.
The action was assmnpsii, to recover damages for the nondelivery of a cargo of linseed pursuant to a contract of sale. The contract price was thirty shillings per quarter; the price when the vessel arrived, and the linseed ought to have been delivered, fifty shillings per quarter; at the time of the trial, it had advanced to fifty-six shillings. The plaintiff had paid in advance a moiety of the pxircliase money, and the defendant had paid this sum with interest into court, and an additional sum of £524, and his counsel insisted on the trial that the whole amount paid into court was sufficient to cover all the damages which the plaintiffs were entitled to recover; but the opposite counsel contended that as the plaintiff had paid a portion of the purchase money, they were entitled to damages according to the piice at which the seed was selling at the time of the trial. Lord Abinger, who tided the cause, told the jury that in his opinion, the plaintiffs were not entitled to treat the cause as resembling contracts for replacing stock, and were, therefore, not entitled to damages according to the price of the seed at the time of the trial, and that taking the price at the time the cax’go would have arrived had it been shijxped for delivery under the contract, it appeai'ed to him that enough had been paid into com't. The jury under this charge, being of the same opinion as to the sufficiency of the sum paid into court, found a verdict for the defendant. The counsel for the plaintiff moved for a new trial, on the ground of the misdirection of the jxxdge, and in sxxpport of the motion relied principally upon the language of the com’t in Gainsford v. Carroll, but the judges were all of opinion that the case had been left to the jury under the proper direction, the plaintiffs not being entitled to speculative damages to cover the profits which they might possibly have made had the linseed been delivered, and there being no circumstances to show that they had, in fact,
When we examine with attention the cases of West v. Wentworth and Clark v. Pinney, the source of the error, which we are forced to think that the decisions involve, is readily discovered. In each case, the counsel for the defendant insisted that where goods contracted to be sold have not been delivered, their value at the time fixed for the delivery is not merely the ordinary, but the only measure of damages. Hence the- general question, whether in any case higher damages can be given, is that to which the attention of the court was alone directed. It does not seem to have occurred to the counsel, and therefore escaped the attention of the court, that although special damages exceeding’ the original value may in many cases be justly given, yet they can be given only as an indemnity, and consequently that proof
We resume the inquiry, that will not much longer detain us ; whether the principles which we have stated as those which ought, in all cases, to control the estimate of damages are consistent with the adjudged cases.
In trespass de ionis asportaUs, if no exemplary damages are claimed, there seems to be an entire concurrence of the, authorities, that the general rule of damages is the same as in trover, and it is well settled, that speculative damages to cover: the loss of possible or even probable profits, ought not to be allowed. (The Apollo, 9 Wheat. 376; Pacific Ins. Co. v. Conard, 1 Bald. 138; S. C. 1 Peters 275; Brannin v. Johnson, 19 Maine, 361.)
The numerous cases in replevin, which were cited by the counsel upon the hearing, have no striking application, and are not very consistent. These which favor most the argument for the defendant, are Carpenter v. Stevens, (12 Wend. 589,) and Swift v. Barnes, (16 Pick. 194.) In Carpenter v. Stevens, the defendants, in an action upon a replevin bond, when the non-return of the property pursuant to a judgment de retorno habendo, was alleged as a breach of the condition, pleaded that before the judgment was rendered, the property had perished by inevitable accident without any default of the defendant, Stevens, (the plaintiff in the replevin,) his servants or agents, and upon demurrer the supreme court, holding'the plea to be a good bar, gave judgment for the defendants. This decision, if admitted to be law, apparently justifies all the conclusions that were drawn from it by the counsel for the defendant. If the plaintiff in replevin is discharged from all liability when the property has perished by inevitable accident, he cannot be responsible for damages resulting from a deterioration which it was impossible for him to guard against or prevent. Hence, when the judgment is for a return, he must take the property in its actual state, and is not entitled to damages not imputable to the act or default of the plaintiff, and consequently, if the property is not returned, its actual value, when the judgment was rendered, can be the only measure of damages in a suit upon the replevin bond,
The inferences that have been stated, seem to follow in a logical sequence, and if the decision' in Carpenter v. Stevens were admitted to be law, we should find it difficult to resist them. But this admission we cannot make. The decision is one of those which we regret, but are constrained to say, we cannot follow. It appears to us to be wrong in principle, and it is plainly contradicted by many authorities. The undertaking of the plaintiff in the replevin bond, we conceive, is absolute to return the goods, or pay them value at the time of the execution of the bond. We cannot think that a wrongdoer is ever to be treated as a mere bailee, and that the property in his possession is to any extent at the risk of the owner. We have seen that the defendant in trover or trespass is in all cases responsible for the value of the property when taken or converted, and certainly it has never been supposed that he can discharge himself from this responsibility, in whole or in part, by showing that the property had been destroyed or injured by an inevitable accident, after he had obtained its possession. A plaintiff who, without right or title, has seized the property of another by a writ of replevin, is as much a wrongdoer as a defendant in trover. No reason can be given why his liability should be less extensive, and in fact when the replevin suit is terminated, although he cannot be treated as a trespasser, he may be sued in trover at the election of the defendant. (Yates v. Fasset, 5 Denio 21.) The decision in Cmpenter v. Stevens is plainly inconsistent with the prior decision of the same court in Rowley v. Gibbs, (14 John. 385,) in which the defendants in a replevin, in addition to a return of the goods, were held to be entitled to damages for a deterioration in their
In the second case, Swift v. Barnes, it was held by the supreme court of Massachusetts, in a suit upon a replevin bond, that the plaintiff, who as the defendant in the replevin had obtained a judgment de retorno hdbendo, was entitled to recover the value of the property, at the time its return was demanded under the writ of restitution. We infer from the report, that the property at the time was still in the possession of the defendant, and if so, the decision is in perfect harmony with our own views.
None of the replevin cases, as we have before intimated, have a direct application to the present. In none has the exact question that we are now required to determine been decided or considered. The election which is given to a successful defendant to take judgment for a return of the property, or for its value, we believe, is peculiar to our own municipal law. It is a new provision in the revised statutes; and so far as we have been informed, or have discovered, this is the first case in which the question as to its proper construction has been raised for decision. This question leads to the next branch of our inquiry, namely, whether the rules which we have endeavored to show ought in all cases to be followed, are consistent with the provisions of the statute; and that they certainly are so, no observations can be requisite to prove. It is sufficient to read the statute. It contains no reference to the period at wliich the value for which judgment may be taken is to be calculated, and no definition of the principles that are to govern the estimate of
The resrdt of our opinion is, that the referee has erred in assessing the value according to the price of flour at the time of the defendant’s election, and in allowing interest upon that sum from the time of the replevin. The report must therefore be set aside, and there must be a rehearing or trial, unless the parties will consent that judgment shall be entered for the value, according to the price of the flour when replevied, with interest from that time, there being no evidence to show that any special damage, exceeding the interest, has been sustained.
We shall make no excuse for the length of this opinion. Our motives for examining the subject so fully as we have done, we have no doubt, will be understood and appreciated. The arbi- ■ trary distinctions which were permitted to flow from a difference in the forms of action, are now abolished, and the time has
At a subsequent term, the counsel for the defendant elected to take judgment ©n the principle settled by .the .court, and it was entered accordingly.