The defendant’s counsel demanded to go to the jury upon the question whether the sale of the fifteen casks of wine by Lingenfelder to the plaintiff was in fraud of Stoessel, a creditor of Lingenfelder, and as to what were the contents of the casks ; and also requested the court to instruct the jury that there was no evidence upon which they could find that the casks contained 1,364 gallons of wine; also that interest by way of damages on the value of the wine could not be included in their verdict for the plaintiff. The court refused these requests, and directed the jury to find for the plaintiff, leaving it to them to assess the damages. There Was no contradictory evidence on the question of title, and no evidence to prove any fraud in the sale. The plaintiff proved the purchase of the wine by his *129own evidence. He paid 92½ cents per gallon, of which over $500 was in gold, in June, 1867, when, as it is well remembered, gold bore a large premium. The value, as stated by him, was $2 per gallon on an average, some of it being worth $2.25.
The inadequacy of price was not a sufficient ground to hold the sale fraudulent or to sustain a verdict for the defendant. The memory of the plaintiff, when cross-examined, appeared to be defective on some unimportant points, but there was nothing in his evidence to cast any doubt upon'the fairness or validity of the sale. It may be conceded that there was some evidence, but slight, that Lingenfelder disposed of the wine to prevent its being reached by Stoessel as a creditor, but there was none affecting the plaintiff with a guilty knowledge, or that his purpose was not honest and fair.
There was no room to doubt that the contents of the casks were wine; the plaintiff had tasted some of it; he had purchased it as wine, and he paid for 1,364 gallons of it as such. There was evidence that the casks were gauged by government officials as containing that quantity of wine, and that the duty was paid as upon wine.
This evidence was sufficient prima facie to, prove the contents of the casks to be wine, and that they contained the quantity claimed. There was no evidence whatever casting a suspicion upon, the reliability of this testimony. As against an alleged trespasser, the proof was quite Sufficient. It was for him to give evidence to raise a doubt before the jury could be called upon to decide it.
There is no doubt that interest may be added to the value at the time of the conversion as damages. (Andrews agt. Durant, 18 N. Y. R., 502.) On the question of value it was proved by the plaintiff that -the wine averaged two dollars per gallon. Against that was the fact that he paid less, and that it was sold by the sheriff at auction for a price still below that paid by the plaintiff. The jury had the subject before them, and there is no doubt that they intended to adopt the *130higher price named by the plaintiff as the value, with interest from the time of the conversion. The wine, at $2, amounts to $2,728 and interest from the time of the conversion to the trial, is $716.60, being three years and nine months. The verdict was $3,874.60, being an excess of $430 over the proper sum.
This sum should be deducted from the verdict.
The judgment must be reversed, and a new trial awarded with costs to abide the event, unless the plaintiff stipulate to deduct $430 from the verdict, and upon such stipulation being filed and acknowledged, the judgment may be amended by making such deduction as of the day it was rendered and so amended, may be affirmed, but without costs of the appeal.