69 N.Y. 448 | NY | 1877
There was a conflict of evidence in respect of the goods actually taken by the defendants, as well as in respect of their value. The jury by their verdict gave the plaintiff as the value of those taken, four thousand five hundred dollars, with interest from the time of the taking, amounting in the aggregate to six thousand nine hundred and ninety-eight dollars and fifteen cents, as included in the judgment. The witnesses on the part of the plaintiff placed the value of the goods at different amounts, from seven to ten thousand dollars, and testified that their retail value would be twenty-five per cent. in addition to the values named by them respectively. The goods were sold by auction, on execution, and brought two thousand one hundred and eighty-seven dollars and ninety-four cents. Witnesses for the defendants, experts, veriously estimated their value at from two thousand to two thousand five hundred dollars. There is nothing in the verdict or in the appeal book to show that the jury adopted any other or different rule or measure of damage than that authorized by the court.
The learned judge supposing that he was following the Commission of Appeals in Wehle v. Butler, not then reported, but since reported in
In some cases where the value of the property is fluctuating, the value may be fixed at the time the owner is deprived of his property, or within such reasonable time thereafter as he might have replaced it. (Romaine v. Van Allen,
It is well settled that in actions for the conversion of goods, or for the non-delivery of goods or chattels upon contract, unearned and speculative profits will not be included as a part of the damages to be recovered. (Blanchard v. Ely, 21 Wend., 342; Boyd v. Brown, 17 Pick., 453; Smith v. Cowdry, 1 How. [U.S.R.], 28; Griffin v. Colver,
The retail value or the price at which goods are sold at retail includes the expected and contingent profits, the earning of which involves labor, loss of time and expenses, supposes no damage to or depreciation in the value of the goods, and is dependent upon the contingency of finding purchasers for cash, and not upon credit, within a reasonable time, the sale of the entire stock without the loss by unsaleable remnants, and the closing out of a stock of goods as none ever was, or ever will be closed out, by sales at retail at full prices.
By the allowance of these unearned and uncertain profits, and also the allowance of interest from the time of the conversion the plaintiff recovers the profits which she had hoped to make in the future, and interest upon the profits, as well as upon her investment. The plaintiff was entitled to compensation, and that consisted of the market value of the goods, their cost, or what they would have cost in the market and interest thereon, and nothing more. The retail profit was not included in the compensation to which she was entitled.
I am inclined to think the court also erred in excluding the evidence of the witness Holbrook and others as to the correctness of the inventory of goods taken, as put in evidence by the plaintiff, but as the question may not arise in the same form upon a retrial of the action, we will not consider it.
The judgment must be reversed, and a new trial granted.
All concur.
Judgment reversed. *452