The allegation in the complaint, respecting the value of the mare, not controverted by the answer, is that the mare was “ of the value of about one hundred and thirty dollarsHence the judge committed no error in permitting the defendant to show her true value. Perhaps the plaintiff might have required the judge to instruct the jury that they could not, under the pleadings, assess the value of the mare at a sum exceeding $180, but that question is not in the case.
The judge did not err in rejecting the plaintiff’s offer to prove that John Woodruff deceased, applied to a witness to hire him to break the mare for himself, and that he contracted to sell her after the time when the defendant claimed the deceased gave or sold her to him. (Phœnix v. Dey, 5 John. 412. Sprague v. Kneeland, 12 Wend. 161. Brown v. *511Mailler, 2 Kernan, 118.) That the mare was kept, at the time of the alleged gift or sale, and afterwards, upon the farm of Woodruff, where the defendant labored for him and lived, or that a case of doubt was made by the evidence, whether Woodruff had ever given or sold the mare to the defendant, did not render the evidence offered competent for the plaintiff. The decisions cited in 1 Cowen & Hill’s Notes, pp. 600, 661, 662, which seem to hold that the declarations of the alleged donor are evidence against the donee where there is doubt as to whether a gift has been established, conflict with principles well established in this state, and should not be followed.
The judge correctly held that the defendant might claim and establish a title to the mare by gift from John Woodruff, deceased, under the answer. He did not so decide until after the plaintiff had proved, by several witnesses, that the defendant had said Woodruff gave the mare to him. One issue in the action was whether Woodruff owned the mare at the time of his death. The plaintiff’s evidence, that the defendant had said Woodruff gave the mare to him, tended to establish that Wood-ruff did not own her when he died. The plaintiff, in attempting to disprove the defense that the defendant purchased the mare of the deceased, was so unfortunate as to give evidence that tended to establish another defense which, if sustained was fatal to the action under the denial in the answer, that Woodruff, at the time of his death, owned or was in possession of the mare. The defendant was not estopped, by the defense set up in the answer, that he purchased the mare of Woodruff, from availing himself of another defense, at the trial, which the plaintiff’s evidence tended to establish, for the reason that such other defense was a bar to the action under a denial in the answer. What has been said on this point also shows that the judge committed no error in his charge to the jury upon this branch of the case.
It was unnecessary for the defendant to set up in his answer facts which would entitle him to special damages for the taking and detention of the mare from him by the plaintiff, to enable him to recover such damages. It is not probable that the defendant knew, at the time he interposed his answer, precisely *512what damages he would sustain before the trial by being deprived of the use of the mare.
As a general rule it is not necessary for a defendant, in an action to recover the possession of personal property, to claim special damages, in his answer, to entitle him to recover them, for the taking and detention of his property from him by the plaintiff. The facts w'hich entitle the defendant to special damages do not always exist at the time of answering. They may afterwards arise before the trial, as may be seen by the authorities hereinafter cited. It was therefore proper for the defendant to prove, under his answer, what the use of the mare was worth from the time she wras taken from him by the plaintiff, inasmuch as the plaintiff had detained her. But whether the defendant’s evidence was sufficient to entitle him to recover for the use of the mare as damages, or whether he could only recover the interest on her value from the time the plaintiff took her, as damages, are questions which need not be now determined, because there is nothing in the bill of exceptions to show but that the judge correctly stated the rule of damages to the jury, as it is established by the adjudications upon the question. (See Rowley v. Gibbs, 14 John. 385; Brizsee v. Maybee, 21 Wend. 144; Suydam v. Jenkins, 3 Sand. 614.)
The charge of the judge as to what acts constitute a valid gift of a chattel, may have misled the jury. Among his remarks is one “ that there need not be an actual delivery.” It is true he subsequently qualified it somewhat, but it was nevertheless unlawful leaven in the charge. The mare was capable of actual delivery by Woodruff to the defendant; and there was no pretense of any symbolical delivery of her, or that she was delivered to another person for him. She was on the farm where both parties resided at the time of the alleged gift. And in such a case Kent says, “ without an actual delivery the title does not pass.” (2 Kents Com. 438.) And all the authorities so hold. (See Noble v. Smith, 2 John. 52; Grangiac v. Arden, 10 id. 293; Cook v. Husted, 12 id. 188 ; 14 Barb. 243 ; 19 id. 631.)
The judge also erred in rejecting the offer of the plaintiff to show that the defendant, within two or three days previous to *513his marriage, stated that the mare belonged to Woodruff. His marriage occurred in the fore part of the year 1855; and he alleged in his answer, on oath, that he purchased the mare of Woodruff in November, 1854. If he stated in January or February, 1855, that Woodruff then owned the mare, it was a circumstance for the jury to consider in determining the case. The plaintiff was entitled to prove the alleged statement, and his offer should have been received.
[Tompkins General Term, October 20, 1857.The judgment in the action must be reversed and a new trial granted; costs to abide the event.
Decision accordingly.
Gray, Mason and Bdlcorn, Justices.]