There are two particulars in which I dissent from the conclusions reached in the majority opinion. The first is in Two of the opinion construing paragraph 12 of the contract. This paragraph in full is as follows: "The Derby Company having bought some 850,000 pounds of copper specified as to the amount thereof in billets for 9.2" copper bands, it is agreed that for the first contract taken hereunder for 9.2", the Seymour Company is to take over this supply in the same manner as though it were being purchased by them from refinery for such contract as to such part thereof as may be required at the Derby Company's purchase price therefor, and as to any part not yet specified, the same may be specified by the Seymour Company for other sizes."
I interpret this as being one entire contract relating to 850,000 pounds of copper at purchase price for the whole. This quantity was made up of different shipments to the Derby Company from the refinery at varying prices. The quantity to be taken over by the Seymour Company under this paragraph has no reference to the invoice quantities as shipped to the Derby Company. The Seymour Company was not to specify certain invoices, but simply copper out of an entire quantity of 850,000 pounds. The cost of the 850,000 pounds will be determined by the sum total of the various invoices from which comes the cost per pound, and then the cost of any part of the 850,000 pounds ordered will be determined by the average cost per pound which in fact was 30.8 cents. It further appears that this average price was recognized by the plaintiff when it gave credit to the defendant for 650,980 pounds of copper at 30.8 per pound.
This construction avoids any difference between the parties as to the invoices to be selected as being for copper for a higher or lower price, and does not *Page 347 hamper either party should the Seymour Company not take the entire quantity under the option part of the paragraph. The trial court construed the contract as what may be called a contract for invoices, and charged the defendant the difference between invoice prices and the average price per pound of the copper taken by the Seymour Company, amounting to $6,886.68 I think this whole charge, founded on the construction of paragraph 12 as a contract for invoices, was erroneous. I agree with the allowance of the cash discount in the majority opinion, amounting to $972.94.
The second point on which I dissent is covered by the discussion in Eight, c, in the opinion, and is as to the measure of damages for delay in returning scrap copper by the defendant to the plaintiff, under the allegations of the fifth count. The rule adopted in the opinion, if I understand it, is that inasmuch as the plaintiff had to go into the market and buy copper in substitution of that detained, the damages depend upon whether the temporary investment resulted in a loss. This theory of damages is based on intermediate purchase of copper by the plaintiff. The corollary obviously is that had there been no such purchase there would have been no damage.
Under the contract of January 29th, 1917, copper scrap was to be returned forthwith to the plaintiff. At the time of the contract, the defendant had on hand 662,420 pounds of scrap copper which it was the duty of the defendant to return forthwith. There were thereafter some deliveries, and also scrap accruing from manufacturing operations, with the result that on March 7th, 1917, plaintiff bought a large amount of copper at an increased price, of which 618,252 pounds would not have been purchased at that time had the defendant returned scrap according to contract. The *Page 348 majority opinion bases the damage upon this fact. The detained scrap, or its equivalent, has been returned without objection by the plaintiff. Therefore, the question is not one of conversion. This scrap was all the time plaintiff's property, having lawfully come into the defendant's possession. The case is, then, simply one of unlawful detention of possession. The copper was for manufacture and sale, not for use. It was procurable upon the market at any time, and any other equal quantity of copper was an equivalent. In such case the universal rule appears to be that damages will be measured by the interest on the value of the property during the time of its detention, plus, in some cases, depreciation in market value. The cost of a substitute does not in such case enter into the equation. The case, except for the possibilities of depreciation, does not differ from delay in performance of an agreement to pay a specific sum of money on a time certain. The fact that the creditor, as a result of delay in payment, had to borrow at higher rates, is immaterial: the damage is the interest on the money detained.
In all cases interest may be recovered unless there is a recovery for loss of use. If the property is for sale, or for manufacture and sale, and depreciates while detained, this depreciation may be added. The plaintiff could have replevied this copper at any time. The measure of damages in such cases should control. The rule is stated in 23 R. C. L., p. 911, as follows: "In those cases where the property is recovered to the owner the damages are usually measured by interest and depreciation in value. In most cases interest on the value from the time of the wrongful taking is a proper measure. It will be, generally, in all cases where the property detained was merchandise kept for sale, grain and all other articles or property useful only for sale or consumption. In such cases, if the owner recovers the *Page 349 interest on the value of his property from the time he was deprived of it, he will ordinarily have complete indemnity unless the property has depreciated in value, in which case the depreciation must be added to the interest on the value, taken as it was before the depreciation, and the two items will furnish the amount of the damage. This damage, together with the property or its value at the time of the trial, will give the owner as complete indemnity as the law is generally able to give any person seeking redress for a wrong."
In Sedgwick on Damages (9th Ed. Vol. 2) it is said, in § 536: "Where the goods depreciated in value or suffered injury during the period of detention, the successful party can always recover the amount of the depreciation in value as damages for detention." And in § 538: "Where property is held by the owner, not for continuing use, but for consumption or sale, it is evident that no compensation can be recovered for use of the property; yet he has suffered damage by the detention of the property from him. This damage, in cases where the value of the use cannot be recovered, is measured by interest on the value of the property detained. The presumption is that damages for detention are to be so measured." See, also, 2 Sedgwick on Damages (9th Ed.) § 633b. To the same effect see 34 Cyc. pp. 1561, 1562; Ormsbee v. Davis, 18 Conn. 555.
The theory of damage adopted denies any damage from the detention of copper prior to the date of March 7th, when it should have been returned forthwith after January 29th, and the damage is directed to be computed on the basis of the price of copper March 7th, and the price of the copper detained on March 7th at the dates when returned, it having been returned in various lots subsequent to March 7th with interest on balances of unreturned copper from March 7th to date of return. As I view the law, the matter of the intermediate purchase *Page 350 set out as special damages in the fifth count is irrelevant. This leaves the fifth count as a claim for damages for detention as described in Exhibit E under this count, viz: "Loss on copper scrap held at Derby and not returned promptly in accordance with contract." The majority of the court rightly holds that the trial court was in error in assessing damages under this count. I think the majority opinion is erroneous as to the measure of damages, and that the true rule of damages under this count is interest on the value of the detained copper scrap from the time of its detention until returned, plus depreciation in value at the time of its return, if such there be.