The opinion of the Court was delivered by
Fenner, J.There is no dispute as to the following facts, viz: Plaintiffs sold to defendant a second-hand locomotive engine at the price of $2000, subject, however, to trial and rejection if not found sat*930isfactory. The engine was shipped to and received by defendant, who, after trial, rejected it, but, at the same time, requested the use of it for twelve days longer as a compensation for delay, etc., binding himself to turn it over to plaintiffs at end of that term or to pay ■for it, which proposition was accepted. At the expiration of the term defendant refused either to surrender the locomotive or to pay for it'
After putting him in default, plaintiffs brought his action by an original petition asking judgment for the return of the locomotive with damages, or for the price. Subsequently and before answer they amended their petition, alleging the tortious conversion of the property and claiming damages in $2600 as the value of the engine and $250 as special damages for attorney’s fees in this suit.
Defendant, at fm-t, filed an answer of general denial, which he subsequently amended by an offer to return the locomotive and to pay a full'price for its use.
No exception or objection was made to the amended petition of plaintiffs, and the case was tried on the issue of tortious conversion and the measure of damages in the value of the property. On defendant’s prayer, the trial was before a jury. Evidence was taken pro and eon as to the value of the locomotive, plaintiffs’ witnesses estimating it as high as $2500, while defendant’s placed it as low as from $1000 to $1500. The jury found a verdict for $2,361.61, for which judgment was rendered.
Defendant assails the judgment on two grounds:
1st. He claims that he is bound only for the stipulated price of the engine, viz : $2000. We think it is too late for him to take this position. He voluntarily abandoned his conditional contract of sale, accepted the issue of conversion, and the value of the engine as the measure of damages. Had the jury followed the estimates of his witnesses and found a value less than the stipulated price, we should not have heard this plea from him, and we cannot listen to it now.
He aitacks the verdict as excessive. Ordinarily the price at which plaintiffs had sold the property might be taken as a binding valuation thereof by themselves. But reasons are given why the price stipulated turned out to be less than the value at the time of sale and why the value had subsequently advanced.
The evidence as to the value was conflicting; the fiuding of the jury is fully supported by plaintiffs’evidence to which the jury evidently gave credence, It is supported.by the approval of the judge expressed in his reasons for refusing the new trial. We find no grounds *931justifying us in disturbing it, and considering the illegal and highhanded course of defendant, we have no inclination to do so.
The judge did not err in charging the jury that the claim for attorney’s fees as special damages was untenable and the amendment in that respect asked by plaintiffs is denied. Chapuis vs. Waterman, 34 Ann. 58; Roos vs. Goldman, 36 Ann. 132; Chamberlain vs. Worrell, 38 Ann. 348.
Judgment affirmed.