Adams v. Loomis

7 N.Y. St. Rep. 592

Opinion

Follett, J.

This action was brought to recover damages for the conversion of hay, oats and corn owned by the parties as tenants in common under a farm contract, each being entitled to one-half of said products at the end of the term. Before the expiration of the term the defendants, who owned the farm, carried away the products above mentioned under circumstances not necessary to be here stated. The action was tried after the termination of the contract.

In an action for the conversion of articles having a market value, the measure of damages is the market value of the articles at or near the place of conversion. Under this contract each party was presumptively the owner of an undivided half interest in the articles, and the plaintiff was not entitled to recover for more than one-half of their value; and in actions between tenants in common, the tenant whose property has been converted is entitled to recover to the extent of his interest therein and no more. The court was asked to charge that the plaintiff could not recover for more than one-half of the oats, which was refused. This was error. Under the evidence, the plaintiff was certainly not entitled to recover on account of the oats more than half of their value. The court charged that if the plaintiff was entitled to recover “ then the plaintiff’s damages would be whatever it would have been worth to him providing the property had remained upon the place and he had fed out this hay and grain to the stock of cows and horses upon the premises.” This was excepted to, and was error. The proposition is repeated at folio 219, which was excepted to, and was error.

For these errors the judgment and order must be reversed and a new trial granted, with costs to abide the event

Hardin, P. J., and Boardman, J., concur.