Moore v. Winter

Richardson, Judge,

delivered the opinion of the court.

No circumstances of aggravation are shown in this case, and the action is therefore to be regarded as one of trover in reference to the measure of damages; (Walker v. Borland, 21 Mo. 289 ; Sedgwick on Dam. 558;) and in such cases the plaintiff is generally only entitled to recover the value of the property with interest. (Polk v. Allen, 19 Mo. 457 .) If, however, the plaintiff has only a special property in the subject of the action, the value of the goods is not always the measure of relief, and he can generally only recover com- *382 mensúrate with the value of his interest, whatever it may be. Thus, if he has an estate for life or for a, given number of years, the value of liis interest will furnish'the'rule of compensation ; (12 S. & Mar. 223;) and in this case, as the plaintiff had the right to the possession and services of the slave from the time he was taken away by the defendants to the end of that year, he ought to recover damages for the value of the services of the slave during the residue of tiré-term. (Compton v. Martin, 5 Pick. 14 ; Hickok v. Buck, 22 Verm. 149 .) In Compton v. Martin, the defendant hired to the plaintiff a negro man for two years, but a few days after the slave was put into the possession of the plaintiff, he returned to his owner and was sold, so that the plaintiff was deprived of his services. In an action of trover, the plaintiff was allowed to recover the difference between the amount fixed as hire and the profits of the negro’s labor for two years. The defendant, in Hickok v. Buck, leased to the .plaintiff a farm for one year and agreed to furnish a horse for the plaintiff to use upon the farm during the térm. The horse was furnished, but was taken away by the' defendant and sold before the expiration of the year. It was held that the plaintiff acquired a special property in the horse, and was entitled to recover, in an action of trover, damages for the loss of the use of the horse for the remainder of the year.

The first clause of the second instruction is equivalent to a declaration that the plaintiff could recover, the value of his interest in the slave, and therefore properly prescribed the measure of damages. The instruction however goes further, and does not stop at laying down a rule that covers all the damages that the plaintiff was entitled to demand, but declares that he was entitled to recover for “ other damage.” The latter clause of the instruction invited the jury into a field of indefinite boundaries, for it did not indicate the kind of damages, whether actual, remote, or speculative, which it was proper for them to consider and allow in'addition to the value of the plaintiff’s interest in the share; and as the first *383 part of the instruction embraced every element to be considered in tlie estimate of damages, the latter part should have been omitted.

The judgment will therefore be reversed and the cause remanded;

Judge Napton concurring. Judge Scott not sitting.