Wallingford v. Kaiser

Nash, J.:

The action was brought to recover damages for the- conversion of a caz-load. of sixteen horses, the property of the plaintiff, consigned-from Chicago, 111.,'to James Johnson at Liverpool, Eng., seized by the defendant as sheriff of Erie county, upon a warrant of attachment. issued in an action .by Hector Yerváeke against 'James Johnson. ...

The defendant justified his levy under the attachment, -claiming that the title of the property attached was in James Johnson.

The plaintiff gave .evidence to the effect that the horses were purchased by Job M. Johnson as the agent of the plaintiff and consigned to James Johnson,’who- was'also the agent of the plaintiff', to receive the horses and sell them for the plaintiff.

At,,the close -of the. evidence both the plaintiff and defendant requested the direction of a verdict, and the court resolved all qnestions of fact by directing a Verdict in favor of the plaintiff, except the assessment of damages, which' was -submitted to the jury.

There was no request by the defendant.to submit any question of fact to the jury, except to charge that there was no evidence in the case upon which a verdict for damages could be rendered. The defendant excepted to the charge that the jury were to find as damages the value of the horses in England.

The general rule for ascertaining the sum which an injured party ought to recover in all cases where personal property is wrongfully taken or detained are very fully discussed by Dube, J., in the case of Suydam v. Jenkins (3 Sandf. 620-622), in the course of which he says, it seems to be manifestly just that the injured party " must be fully indemnified; that he must be placed in the same situation in which he would have been had the wrong* not have been committed. Adopting this rule, it was proper to submit to the jury as th.e damages which the plaintiff was entitled to recover the market value of the horses at Liverpool, Eng., the place of their destination, at the time they would have arrived there if they had not been interrupted in their journey at Buffalo less the expense of getting the horses over to Liverpool-and selling them. ' The horses were in transit from Chicago to Liverpool, and it is reasonably certain that they would in the due course of transportation have reached their destination if they had not been interfered with at Buffalo.

In a well-considered, case in Missouri, the rule was applied in an action for the wrongful conversion of a shipment of flour, interrupted at New Orleans, in the course of its transmission from St. Louis to Boston. (Farwell v. Price, 30 Mo. 587.) The case is not in conflict with Brizsee v. Maybee (21 Wend. 144) and Spicer v. Waters (65 Barb. 227). In neither of those actions was the property taken from the owner while in the course of transmission to market as in this case.

Five of the horses attached were bid in for the plaintiff at the sheriff’s sale. As to those the measure of damages is the amount bid for them at the sale. (Baker v. Freeman, 9 Wend. 36 ; Vedder v. Van Buren, 14 Hun, 250 ; Bedell v. Barnes, 17 id. 353.) It was error, therefore, to permit a recovery for their value at Liverpool. The judgment might be modified by reducing the value of those to the amount bid for them, but for an error in the reception of evidence, which requires a reversal of the judgment.

The plaintiff Wallingford, under objection and exception, was permitted to answer this question: “ Q. Assuming that the sixteen horses in question, attached by the defendant at Buffalo, E. Y., on the 16th day of January, 1904, were American carriage horses, sound and in prime condition, weighing 1,150 pounds or thereabouts each, and averaging that weight, of the average age of- six and one-half years, none over eight and none under five years of age, one of which was a blue roan in color, one chestnut, two black, and the remainder browns and bays, what, in your opinion, were they reasonably worth in the mai'ket at Liverpool, in the latter part of January and in February, 1904? * *■ * A. I should say they were seventy pounds apiece.” The same question was put and answered by " other witnesses for the plaintiff. It is manifestly error to allow evidence of that character. So much depends upon qualities of action and general appearance, shape and style, color and apparent intelligence of a horse, in a word, the looks of the animal, that it is impossible for a person, however expert, to estimate its value from a mere description, a photograph even would give but a very meagre idea of the qualities and value of a horse. The average value only was attempted to be given in answer to the question by the witnesses. Every horse has its distinctive value, as was shown in this case. ' The five horses were bid off at the sale at as many different prices. The sixteen were purchased at prices averaging from $150 to $300. ' The value of the evidence is shown in the cross-examination of Mr. Wallingford, where he says: “ It is only a question of average. Eo person could testify as to what horses he had not seen and didn’t know anything about would be-worth after a three thousand mile journey. I could not testify. It is impossible.”

The judgment and order should be reversed.-

McLennan, F. J., concurred ; Williams and Hiscook, JJ., ■ concurred in result; Spring-, J.,. dissented in an opinion. .