Conroy v. Flint

Opinion — Heydenfeldt

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., and Bryan, J., concurred.

The record is accompanied with a stipulation signed by the parties, agreeing that it shall be considered as appearing on the record that on the 30th of December, the iron which was the subject of the controversy, was delivered to the plaintiffs and taken possession of by them. This was more than a month before the report of the referee finding the damages, and consequently before judgment.

It is urged by the appellant, that therefore the damages should only be nominal.

The rule in such cases is, that when the property is delivered and accepted pending the suit,—that is, before verdict,—the damages shall be merely nominal; but in this case the goods were only delivered after verdict, and it must be assumed that the delivery was in pursuance of the verdict which had already determined the rights of the parties.

The referee in this case found as part of the damages, the difference in value of the iron between the time of detention and of delivery, and judgment was entered on the report.

There is no principle of law which recognizes such a measure of damages. The most liberal rule would allow the highest value of the goods at any time between the conversion and the judgment, and interest thereupon. But where the plaintiff accepts the goods which *329are the subject of the suit, he has made his election to take the goods in lieu of their value, and the only damages he can recover would be the interest upon their highest value; except in cases where some special damage is specifically averred in the declaration.

Whether the charge for wharfage made by the defendant, was a proper one, is a question of fact, decided, upon conflicting testimony, by the Judge of the District Court sitting as a jury, and therefore is not properly a subject for our consideration.

Upon the first question considered, the judgment is reversed and the ca>use remanded.