Thomas v. Sternheimer

Bartol, C. J., delivered the opinion of the court. The question presented by the appellant’s first, bill of exceptions, is the admissibility of the declarations of William H. Oliver, testified to by the witness Simmons. These declarations were admitted as evidence against the appellant, upon the ground that Oliver was acting as his agent, in delivering the horses of the appellees to the officers of the army; and while so acting made the declarations in question touching the [272] matter in which he was engaged. There was evidence from which such agency might be inferred, and it is well settled that the declarations of an agent so made may be given in evidence against the principal, as part of the res gestee. 1 Greenl. Ev. sec. 113. The second bill of exceptions was taken to the rejection of the three prayers of the appellant, and to the instruction given to the jury by the court below. The first prayer of the appellant asked the court to declare that there was no sufficient evidence of a conversion; and his second prayer asked an instruction that there was no sufficient evidence in law to sustain the issue on the part of the appellee, the plaintiff below. There was very great conflict in the testimony touching the connection of the appellant with the taking of the appellees’ horses, and disposing of them as his *own to the Government officers. The testimony of Simmons, taken in connection with that of Robert Gilmor, and of Louis and Jacob Sternheimer, tended to prove those facts, and if believed by the jury, was sufficient to establish a conversion by the appellee. 2 Starkie’s Ev. 839; Dietus v. Fus, 8 Md. 148; Harker v. Dement, 9 Gill, 7. The third prayer of the appellant was also properly refused, because it ignores the material facts, of which there was some evidence, that Lea .and Oliver were the appellant’s agents in taking the horses of the appellees, and delivering them to the Government officers; and it also omits to notice the fact that the horses were so delivered as the property of the appellant, and for his benefit, of which there was also some evidence. In our opinion, there was no error of which the appellant can complain in the instruction given to the jury; it placed the right of the appellees to recover upon the finding, of the facts “ that their horses were passed over to the Government of the United States in the name of, and as the- horses of the appellant, and that he was credited with the same with his knowledge and consent.” It has been argued on the part of the appellant, that the instruction was erroneous in fixing, as the measure of damages, the value of the horses according to the standard of prices established by the Government, “ with interest thereon from the time they were passed over to the United States.” The error [273] is supposed to consist in allowing the jury to' assess interest. But no authority has been cited to show that in trover interest upon the value of the goods from the time of the conversion, may not be recovered as damages. As was said by Lord Hardwicke, in Eakins v. East India Co. 1 P. Wms. 395, “ If a man has my money by way of loan, he ought to answer interest; but if he detains my money from me wrongfully, he ought a fortiori to answer interest. And it js still stronger, where one by wrong takes from me either my money or my goods which I am trading with, in order to turn them into money.” That is the equitable rule, *and there is nothing in the form of action to make it inapplicable to a case of trover. In Kennedy v. Strong, 14 John. 128, interest was allowed in an action of trover. So also in Hallett v. Novion, 14 John. 273-279; Bissell v. Hopkins, 4 Cowen, 53, 54; Hyde v. Stone, 7 Wend. 358. This is the rule in Maryland. In Hepburn v. Sewell, 5 H. & J. 212, the court said, in trover the plaintiff “ selects the date of the conversion as the epoch of the defendant’s responsibility, and claims from him the value of the property at that period, with interest to the time of taking the verdict.” Finding no error in the ruling of the Superior Court, the judgment will be affirmed. Judgment affirmed.