Dailey v. Crowley

Miller, P. J. The referee clearly erred upon the question of damages, and in his conclusion that what the plaintiff did in relation to the checks for the trunks, or otherwise, was not such an acceptance of the goods as would prevent the plaintiff from recovering therefor, and that the plaintiff was entitled to recover the full value of the same. He had found, as a fact, that the plaintiff had taken the checks knowing what they were for, and because the station agent where said goods were desired to have them taken away, delivered the checks to another with directions to take said goods and take charge of them; that they were so taken by such person, who, up to the time of the trial, had continued them in his possession. According to this finding of fact, the plaintiff actually took possession of the goods by taking the checks, exercised acts of ownership over them by means of his agent, and had the entire control over them. He could demand them and recover possession of them at any time of the agent to whom he had entrusted them, or of any person who might receive them, and really had the entire property 304 at his command. This was an exercise of ownership and an acceptance of the property for himself, and not for the benefit of a third party. The fact that he took them, as the referee found, because the station agent desired it, does not, in any way, detract from the right of the plaintiff to the possession and the ownership of the property. He was under no obligation to take the goods for the reason stated, and, as he chose to receive the checks and to take charge of the property by his agent, he assumed the responsibility of asserting his right and cannot claim to recover for the full value of the goods which he has thus reduced to possession. The defendant may be liable in a proper action for inducing the wife to leave the husband, but he is not liable for the foil value of the property. This, perhaps, exclusive of the wife’s wearing apparel, would be the true measure of damages if the goods had not been retaken; but when the plaintiff voluntarily consented to receive the checks, and exercise control over the property, that fact, although not an entire defence, should go in mitigation of damages. (Vosburgh v. Welch, 11 J. R., 175 ; Hanmer v. Wilsey, 17 Wend., 93; Bowman v. Teall, 23 Wend., 309.) The action was for unlawfully taking and carrying away, and not for the conversion of the goods; and for all the damages arising from the alleged taking, the plaintiff was entitled to recover; but as the referee allowed the full value of the goods, notwithstanding their acceptance by the plaintiff and his control over them, the judgment must be reversed and a new trial granted, with costs to abide the event. Judgment reversed.