Stephens v. . Koonce

Avery, J. (after stating the case). The offer made by the defendant in the answer, is not sufficient to subject the plaintiff to liability for costs for refusal to accept it. The-plaintiff, in the exercise of an unquestionable right, elected to bring his action for damages for the conversion of certain property instead of an action in the nature of detinue, or in the nature of replevin, with the right to the ancillary remedy of claim and delivery. It is presumed that the plaintiff adopted the action for the recovery of damages, only with a view to some advantage, expected from pursuing his remedy to judgment on a demand of that kind. The defendant would have no right, under the provisions of section 573 of The Code, to force the plaintiff to accept the property, when it might have been injured or rendered worthless after conversion, or pay the costs, on refusal to do so, even if the-action had been brought to recover the specific property tendered, unless the offer had also included with the proposed delivery of articles tendered in kind a proposal to pay an amount as damages for detention not less than that ultimately assessed by the jury. Woods Mayne on Damages,, secs. 520 and 521. But the defendant offers to disclaim title to and surreuder the engine and other machinery, alleged to have been converted by him, or pay one and r%% *269 dollars. We can treat the offer, therefore, in this case only asatenderof that amount of money,and,as the jury assessed plaintiff’s damages tit three hundred dollars, he did recover “a more favorable judgment” than a recovery of one and rifo-dollars. The defendant objected to “so much of the judgment as allowed the plaintiff interest from the date of judgment.” Thejury had the right, in this case, to determine whether they would allow interest before the rendition of verdict on the amount assessed as plaintiff’s damages, and in the exercise of that power gave the plaintiff “ three hundred dollars, without interest.” Patapsco Mfg. Co. v. Magee, 86 N. C., 350. After verdict, the statute (The Code, sec. 530) provides that the amount of any judgment or decree, except the costs, rendered or adjudged in any kind of action, though not on contract, shall bear interest till paid, and the judgment and decree of the Court shall be rendered according to this section.” McRae v. Malloy, 87 N. C., 196. This is not an action for the specific property in the nature of detinue or replevin, but for the money as damages, and therefore there is no force in the objection that his .Honor should have rendered an alternative judgment for the property, and if delivery could not be had for the value, with damages for the detention. The judgment is affirmed. No -error. Affirmed.