Luce v. Hoisington

The opinion of the court was delivered by Ross, J. The exception to the allowance of damages for the loss of, or failure to raise crops by reason of being deprived of the use of the ox in cultivating the land, is sustained. Such damages wore not the natural and proximate result of the attachment of the ox. The attachment deprived the plaintiff of the use of the ox so long as he was held under the attachment. What the use of the ox was worth during the time he was held under the attachment was the proper measure of the damages for such detention. If the plaintiff, to release the ox, paid for his keeping while attached, the use of the ox during that period was to be valued without reference to the expense of keeping him. If the defendant was at the expense of keeping the ox during such period, his use should be valued at such a sum as it was worth above the expense of his keeping. With the sum that was a fair equivalent for the use of the ox, the plaintiff could have procured the services of another team in cultivating the land, so that it would be as productive and beneficial as it would have been if lie had had the use of the ox for that purpose. The failure properly to put in his crops, and cultivate his land, was not a natural or proximate result of the attachment. It was tlie duty of the plaintiff to have supplied himself with the services of another team for carrying on his land. He could not allow his land to go uncultivated, and ask the jury to speculate as to what his crops would or might have been, if he had had the use of the ox: Tlie income from the land depended much upon after-cultivation, as well as upon the seed, the season, tlie harvesting, and many contingencies, as well as the proper cultivation of the land in the spring. It furnished no just and exact measure of the loss occasioned by the attachment of the ox. But fair compensation for the loss of [439] tlie services of the ox, was the legitimate and proper measure of the plaintiff’s right of recovery for the detention of the ox under the attachment. It was, therefore, error for the County Court to admit evidence to show the loss of crops, and of use of the land, through the plaintiff’s failure to cultivate his land that spring; and to allow the jury to consider such evidence in determining the damages which tlie plaintiff was entitled to recover. Whether the cpiestion allowed to be put to the witnesses on this subject was error, it is immaterial to determine. The allowance of this question, without previous testimony from the witnesses showing their acquaintance with the land, the season, and various elements which must necessarily enter into an estimate, would be error. It is not shown by the exceptions whether the witnesses were thus qualified to form an estimate of the damages. What the plaintiff’s loss was in this resp; ct must of necessity be a matter of judgment or estimate, on which properly qualified witnesses might be allowed to give an opinion. But, as it was error to admit evidence at all on this subject, the particular form of the question, or the order of the testimony, can give no aid in a new trial of the ease and need not be further considered. II. There was_ no error in the refusal, to admit what was said about turning out the other property attached, nor whether that interview between the parties was friendly or otherwise. The other property was not exempt from attachment. The plaintiff might be willing to turn that out, but his willingness to do so would furnish the jury no legetimate aid in determining whether he turned out the ox which was exempt from attachment. Nor would the character of this interview between the parties aid in this respect. III. By pleading to, and justifying the separate trespasses charged in the two counts of the amended declaration, the defendant precluded himself from raising the question on the trial of of the issues thus tendered by him, of the right of the plaintiff to file the second amended count. Hence ho was not entitled to a compliance with his first and second requests. But the County Court told the jury that on the evidence no recovery could be [440] ■had for the alleged trespass set forth in the second count. This would have cured any error in refusing to comply with the first and second requests if otherwise the plaintiff was entitled to have the requested instruction given to the jury. The plaintiff was entitled to amend his original count, so as to set forth the special damages occasioned him by the trespass therein declared for. Such amendment did not set forth a new cause of action, but simply amplified the cause already declared for. IV. The indemnifying bond, taken by the defendant from the judgment creditor at the time he paid to him the money received upon the release of the ox from attachment, was properly received in evidence. The bond indemnified the defendant from (he attachment of the ox. If the defendant had settled with the plaintiff for the wrongful taking of the ox, when the plaintiff paid him the money to obtain the release of the ox, it was not natural that he should have required a bond of indemnity against the very claim he had just settled, before he would pay the money so received to the judgment creditor. Prima facie demanding and taking such a bond under the circumstances was inconsistent with the defendant’s claim that he settled for the wrongful attachment of the ox. It was conduct apparently inconsistent with the defendant’s claim in regard to the settlement. It was open to explanation. Without explanation it tended to support the plaintiff’s contention that he did not settle his claim for the wrongful taking of the ox. This disposes of all the exceptions relied npofi in this court. Judgment reversed, and cause remanded for a new trial.