White v. Allen

Devens, J.

The contract between the plaintiff’s intestate and the defendant’s firm is not to be deemed one so personal in its character that it was determined by the death of the intestate. It could have been completed by the administrator, by finishing the tanning and currying and selling the skins, belonging to the firm, upon the terms agreed. The work having been in fact completed by the firm and the skins sold, the question is as to the damages that the plaintiff may recover. Where one has a special property in a chattel, or a lien thereon, he may in some instances recover its full value against a wrongdoer who appropriates it; but as in such case he recovers all that exceeds his own special property or interest therein, for the benefit of the general owner, when the wrongdoer is not a third person, but the general owner himself, his rights are fully maintained, and circuity of action is avoided, by permitting him to recover the value or amount of his special property or interest alone. He is thus fully indemnified, the balance of the value is with those entitled to it, and the whole controversy is thus settled in a single suit. Chamberlin v. Shaw, 18 Pick. 278 . Fowler v. Crilman, 13 Met. 267 . King v. Bangs, 120 Mass. 514 . Burdick v. Murray, 3 Vt. 302 . Spoor v. Holland, 8 Wend. 445 .

The plaintiff seeks to distinguish the present from the cases above cited, upon the ground, first, that the plaintiff’s intestate never would have had any right of action for tanning or currying the hides, as he was to be paid, if paid at all, only by the balance of the proceeds of any sale above $117.61; and second, that the plaintiff’s intestate never held the hides as security for *425 any charges which the defendant could pay or tender, and thus recover possession of the same. But the amount due the plaintiff is readily ascertainable. It could not exceed the difference between $117.61 and the value of the skins when the process was completed, for which they were in the hands of the intestate, and there is no reason why it should not equal that, as it is found that, alike when the skins were taken by the defendant and when they were sold, they were of the value of $132.81, although something had been done upon them by the defendant to complete them.

It is urged that the value of the interest of the plaintiff not only fluctuates with the price of the goods, but depends upon that fact entirely; and that, having been entitled to sell the goods himself, and having been deprived of that right, the damages sustained cannot be thus measured. But in every case where goods are wrongfully taken, the owner is deprived of his right to sell them, which might perhaps have enabled him to obtain a higher price than their value when taken, by a favorable change in the market; yet it is deemed that he is sufficiently compensated by receiving their then actual value. If, therefore, the plaintiff were allowed to recover the whole sum of $132.81, there would be nothing which he could offset as damages in an action brought by the defendant for the sum of $117.61.

The case does not seem to us distinguishable in principle from those before cited; and the sum of $15.20, being the difference between the two sums above named, with interest upon it from the date of the writ, is all that the plaintiff is entitled to recover. Judgment accordingly.