Stickney v. Allen

Metcalf, J.

The court are of opinion that no error in the trial of this cause is shown by these exceptions.

1. The judge rightly instructed the jury that if the agreement of the parties was, that the defendant, for the sake of doing the printing for the plaintiffs, should do it for a certain sum, and should also make alterations in the plates, without charge, in consideration of doing the printing for an indefinite time, and if the parties acted on this agreement for several years, and then gave it up, and thereupon the plaintiffs demanded the plates, then the defendant had no right to withhold them ; and that the jury might presume that the continuance of the agreemenl had remunerated the defendant for making alterations in the plates. The effect of this instruction was, that a mechanic has no lien on property for labor done on it, when he agrees to do that labor in consideration of being employed and paid by the owner of the property to do other labor for him ; such agreement is inconsistent with a right of lien, or is a waiver of it; and a jury may rightly presume that the pay received for the other agreed labor is a remuneration for that which is done on the property; it is what he agrees to take, whether a remuneration or not.

2. There can be no doubt of the correctness of the ruling, that if the defendant voluntarily parted with the possession of the plates to the plaintiffs or their agent, he lost his lien and could not reassert it. Smith’s Merc. Law, (5th ed.) 540. This ruling was made on the hypothesis that the defendant once had a lien.

3. Taking the whole of the next ruling together, it is manifestly right; being thus: If the jury find that the defendant’s bill for repairs of the plates was not due, and that he refused to deliver them to the plaintiffs, on their demand, unless they would pay that bill, then they were not bound to tender payment of the bill which they owed him for printing, if they were ready to pay it on his giving up the plates. Adams v. Clark, 9 Cush. 215. This ruling was made on the hypothesis that the defendant had a lien on the plates for his bill for printing.

4. The proper rule of damages was prescribed by the judge, namely, the fair value of the plates to the plaintiffs. And he allowed the jury to take into consideration, in estimating that value, the cost of replacing the plates. The defendant insists that the market value was the true rule of damages. And this is doubtless the general rule in trover. But this rule presupposes the conversion of marketable property. Whereas, in this case, it was admitted by the defendant’s counsel, in argtiment, that the plates in question were made for the printing of labels or advertisements in the plaintiffs’ names, which were to be used by them only, in their special business ; and the exceptions show that it was in evidence that they were of very trifling value, except to the plaintiffs. Such things cannot with any propriety be said to have a market value. And the actual value to him who owns and uses them is the just rule of damages in an action against him who converts them to his own use. Suydam v. Jenkins, 3 Sandf. 621, 622.

There is no ground for the defendant’s objection, that damage to the amount of the value of the plates to the plaintiffs alone was special damage, and therefore not recoverable, because not alleged in their declaration. Special damage, in trover, is that which the plaintiff sustains beyond the mere loss of his property by its conversion. Davis v. Oswell, 7 Car. & P. 804. Bodley v. Reynolds, 8 Ad. & El. N. R. 779. If the plaintiffs, in this case, had offered evidence that by the loss of their plates their business was obstructed, it would not have been admissible, under their declaration, for the purpose of proving damage beyond the value of the plates. Mayne on Damages, 212.

5. The court, we think, correctly ruled that the attachment and return of the plates did not affect the question of damages.

Exceptions overruled.