Handforth v. Maynard

Barker, J.

At the hearing, all exceptions were waived except those relating to the rule of damages and the admission of evidence under that rule. The instructions requested were that the plaintiff could not recover the value of the ice harvested and *417 stacked under cover, or recover profit beyond the expense which might inure to him from the ice if harvested, or any amount beyond the actual expense to which he had been subjected.

The instructions given did not allow the jury to give as damages the value of the ice harvested. It would plainly have been incorrect to instruct them that the plaintiff’s recovery was restricted to the expense of harvesting, or to the actual expenses which he had incurred.

The true measure of his damages was the value of his right to harvest the ice upon the pond, and so make it his property at the time when the ice was destroyed and the plaintiff’s right made worthless by the defendants’ acts. In the absence of a market for ice so situated, evidence was admissible, as tending to show its value and the value of the plaintiff’s right, as to the condition of the ice, the amount fit for harvesting, how long it would take to harvest it, the minimum arid maximum temperature at about that time, the cost of cutting, drawing, packing, and covering the ice, the worth of ice when placed in the ice-house, and the risks attending the process of harvesting. The exceptions to the admission of evidence bearing upon these points must therefore be overruled.

The remaining exception is that to the measure of damages given by the presiding justice, and to the rules laid down to guide the jury in its application. The instruction was, that the true measure of damages “ would be the market or cash value of the ice harvested and deposited upon the shore of the pond, less the expense of so harvesting and depositing it; that to determine that value it would be necessary for them to find upon the evidence the quantity of the ice, the expense of harvesting and depositing it on the shore, the value of the ice so deposited, and then deduct the expense from the aggregate value of the ice on the shore, and the difference would be the amount of damages the plaintiff could recover.” The bill of exceptions states further, “ No objection or exception was taken to this statement of the rule of damages, if the plaintiff was entitled to recover the value of the ice.”

It is to be observed that the instruction does not contain in terms any statement of one element which is essential to the correct assessment of the plaintiff’s damages, in that it omits *418 explicitly to require the jury to consider the risks attending the process of securing the ice. If it is to be so construed as to have permitted the jury to assess the damages without reference to those risks, they may have allowed damages for all of the ice destroyed by the defendants, although it could not have all been secured and stored. If the instruction meant that the true measure of damages would be the market or cash value of so much of the ice as the jury should find would have been harvested and stored but for the defendants’ wrongful acts, less the expense of harvesting and depositing it, the ruling would do the defendants no injustice. We have had great difficulty in deciding whether this was the sense in which the ruling was understood by the jury. There was evidence as to the weather and the many risks of harvesting ice. The value of the ice deposited on the shore, and not the value of all the ice, was laid down as the first element of the computation to be made, and the expense was to be deducted from that value.

These considerations, in connection with the additional statement above quoted, tend to the conclusion that the instruction was understood to require the jury to consider, in making their assessment, the risks which might prevent the plaintiff from securing all of the ice.

In the state of the pleadings, even if the plaintiff could not maintain either an action of trover or of trespass quare clausum, and if the ice was not his, its value and the expense of securing it both enter into the basis of the assessment of his damages for the wrong done by the defendants, and for which he was entitled to recover under the pleadings and the evidence. Richards v. Gauffret, 145 Mass. 486 . The defendants contended, at the trial, that the value of the ice was entirely immaterial upon the question of damages. While the plaintiff was not, strictly speaking, entitled to recover the value of the ice, the measure of damages contended for by the defendants was so absolutely different from that given in the instructions to the jury, that we are inclined to the opinion that the presiding justice may have fairly understood the defendants to have waived any exception, if the value of the ice was properly the basis of the assessment.

Exceptions overruled.