West v. Wentworth — 3 Cow. 82

Majority

p. 82

West against Wentworth & Beach.

Headnote

In ^ ass ampssit on a note payable in cles^the measure of damages mavketMp'rice of those articles at any time between in°e 11 oS faná the time of the

in trover, the damages are measured by the highest diate th^time of conversion and trial.

Assumpsit, tried at the Onondaga Circuit on the 11 th daw „ . ° - ot July, 1823, before 1 HRoop, C. J udge-.

lh® trial, the counsel for the plaintiff introduced two notes, or memorandums in writing (¡he execution of which was admitted by defendant’s counsel,) in the following words ; (First note) “ In the momh oí June next, we, jointly and sev* . J erally, promise to pay Simeon West eighty-eight barrels §ood salt’ 'n S00cJ barrels, well nailed, delivered at Liverpool, value received, November 1st, 1819, subject to duties.” Signr “ Wm. Wentworth, Wm. FI. BeachN (Second note) “In the month of October next, we, jointly and severally, promise j j j r to pay Simeon West eighty seven barrels good salt, in good barrels, well nailed, delivered at Liverpool, subject to duties, value received, November 1st, 1819.” Signed “ Wm. Went-worth, Wm. H. Beach-'1'1

The counsel for the plaintiff then offered to prove the maximum price of salt between the times the notes became due and the time he demanded payment, to which the counsel for the defendants objected, contending that the plaintiff should be confined to the times the notes fell due in proving the value.

The Judge decided that the plaintiff was entitled to recover the maximum price of salt, bet .veen the times when the notes fell due, and the demand of payment by the plaintiff The defendants, by their counsel, admitted that the salt was demanded on the '¿Qlh day of October, 1822, and that the price on that day was $1,50 'per barrel ; that being the highest price between the times the notes fell due. and the time of the demand. The jury, under the charge of the Judge, found a verdict for the plaintiff for $262,50 damages, being the value of the salt, at $1,50 per barrel.

J. G. Forbes <$• B. D. Noxon,

moved for a new trial, on the ground of misdirection as to the measure of damages ;

p. 83

and cited Davis v. Exrs. of Richardson, (1 Bay's Rep. 105,) and Dutch v. Warren, (cited, and a short note of it given in Burr. 1010.

D. Kellogg, contra.

Curia,

The measure of damages adopted at the Circuit was the true one. The case of Cortelyou v. Lansing. (2 Caine's Cas. Err. 216,) and of Shepherd v. Johnson, (2 East, 211) are precisely in point. The latter was an action upon a contract to replace a quantity of stock by a given day; and it was held that the plaintiff was entitled to recover the highest value of the stock as it stood, at the time of She trial; and not its value on the day when it should have been delivered. Grose, J. says, “ the true measure of damages in all these ca=es is that which will completely indemnify the plaintiff for she breach of the engagement. If the defendant neglect to replace the stock at the day appointed, and the stock afterwards rise in value, the plaintiff can only be indemnified by giving him the price of it at the time of tria! ; and it is no answer to say that the defendant may be prejudiced by the plaintiff’s delaying to bring his action ; for it is his oWn fault that he does not perform his engagement at the time.” Cortelyou v. Lansing was an action of assumpsit brought by the representatives of a pawnor against the pawnee of a depreciation note, which the pawnee had sold before application was made to redeem; and it was held that the plaintiffs were entitled to recover the value of the note at the time of the application, and not at the time of the pledge. So in trover, if the chattel be not of a fixed and determinate value, its worth at the time of conversion is not the rule of damages ; but they may be enhanced according to the increased value of the chattel subsequent to that time. (Fisher v. Prince, 3 Burr. 1363. Whitten v. Fuller, 2 Bl. Rep. 902.)

Hew trial refused.