Woodham v. Gelston

1 Johns. 134 | N.Y. Sup. Ct. | 1806

Livingston, J.

delivered the opinion of the court; We are not now to settle a rule of damage, which will be applicable in every action of trespass, but merely, whether the one contended for by the plaintiff be proper, under all the circumstances of this case. We think it is. It is seldom, that the actual injury sustained in consequence of a tort, can be ascertained with so much precision. Since it can be so estimated, and the party is willing to adhere to this measure of damage, there can be no reason to prevent his recovery to that extent. The data, on which this estimate is formed, are more satisfactory, and leave less to an arbitrary discretion, than any which have been proposed as substitutes. The difference between the price in the first and second sale, both being fair, though some credit was given in the first, and the actual expenses he has incurred, will, with the interest, amount to no more than an indentnity to the plaintiff, for the injury resulting from the conduct of the defendant. To such an indemnity, the defendant, who is admitted to bé a trespasser, cannot reasonably object. "The marshall’s fees must now be presumed to have been properly paid; and, if the defendant were liable for them, as was probably the case, since the property was restored, there can be no hardship in refunding them to the plaintiff; -at any rate, it might have been shewn to' the jury, or stated in the case, that this was a mere voluntary payment, and then a deduction would have been proper. ■ The interest has been objected to,' because the jury were not obliged to allow it. If they had a discretion on this subject, it is sufficient ; for, as I understand the case, we may allow every item which the jury might have given. Two trifling charges for wharfage and ship-keeping must be deducted, as they accrued after the restoration of the vessel. As the calculation stands, the verdict includes a small sum, as compound interest. We are of opinion that this must be deducted, without, however, intending to say, that compound interest can never, in any case, be recovered.

' . The judgment of the court is, that the two sums above mentioned, amounting to 13 dollars, be deducted, and that simple interest be computed on the balance to the 4th day of February term last, and that the verdict be entered for that sum, on which the plaintiff is to have judgment.

Judgment for the plaintiff.