Swift v. Barnum

Sanford, J. This is a motion for a new trial, complaining of the charge of the court to the jury. The plaintiffs, residing in New York, delivered a number of hat-bodies and a quantity of fur to one Brisco, to be manufactured into’1 hats for the plaintiffs, (Brisco finding the [527] trimmings,) for which manufacture and trimmings the plaintiffs agreed to pajr Brisco ten dollars per dozen, upon the delivery of the hats in New York,—the making being estimated at six dollars, and the trimmings at four dollars per dozen, and the value of the finished hats being twenty-four or twenty-five dollars per dozen. Most of the hats were finished and ready to be forwarded to the plaintiffs, when they were taken at Brisco’s shop in Newtown, by the defendant, a deputy-sheriff, upon an attachment in favor of one Curtis against Brisco, as the property of Brisco, and were afterward sold upon the execution obtained by Curtis in that case. No question was made, as to the regularity of the proceedings under that attachment or execution. Before the sale of the hats, and before the commencement of this suit, the plaintiffs tendered to the defendant the sum of seventy-six dollars, for the services and expenses of Brisco in the manufacture of the hats, and for his lien on that account, and demanded the property of the defendant. The defendant received the money without objection, and made no claim for a larger sum, but refused to give up the hats, and this action of trover was brought to recover the value of them. The defendant sought to justify the taking under his attachment, and claimed that if the plaintiffs were entitled to a verdict, the rule of damages should be the value of the hats, deducting ten dollars per dozen for Brisco’s labor and trimmings, with interest from the time of the demand. The court instructed the jury, that if they should find that the plaintiffs merely delivered the hat-bodies and fur to Brisco, to be made into hats for them, and had never parted with their property in the same, they were entitled to a verdict, and that the rule of damages would be, not the full value of the hats, but the value of the hat-bodies and fur, together with the sum of seventy-six dollars paid to the defendant, and interest on both sums from the time of the demand. [528] And that the defendant’s acceptance of seventy-six dollars for Brisco’s lien, making no claim for a larger sum, should be considered as a waiver of all further claim on that account. The only error in the charge, which the counsel for the defendant insist upon in this court, relates to the rule of damages. Under the charge, the jury must have found that the hats were the property of the plaintiffs, subject to Brisco’s lien, and that the full amount of that lien was tendered and paid by the plaintiffs, and received by the defendant,—so that the hats, discharged from the lien, (at any rate, so far as the defendant was concerned,) were, at the time of the demand, the absolute property of the plaintiffs, and they were entitled to the immediate possession of them. And it is fair to infer from the charge and the verdict, that “the full value of the hats” was something more than the value of the hat-bodies and furs, together with the money paid to the defendant on account of the lien. Whatever therefore might be said of the charge on this point, by the plaintiffs, the defendant has no cause of complaint. The value of the property at the time of its conversion, is, ordinarily, the rule of damages. 2 Greenl. Ev., § 276. And we think the defendant has failed to show the existence of any fact, or circumstance, which entitles him to the application of any more favorable rule than that laid down in the charge, and that the verdict ought not to be disturbed. Johnson v. Blackman, 11 Conn. R., 342. Holly v. Brown, 14 Conn. R., 255. Kelsey v. Hanmer, 18 Conn. R., 311. In this opinion the other judges concurred, except Waite, C. J., who was disqualified. New trial not to be granted.