Cable, Fitch & Losee v. Dakin & Dakin

20 Wend. 172

• Court: New York Supreme Court
• Decided: October 15, 1838
• Status: Published

Opinion

By the Court, Bronson, J.

On examination of the affidavits on both sides, there can be but little doubt that the defendants actually sustained as much damage in consequence of the interference of Loses on behalf of the plaintiffs, and the replevin, as the jury has given. They suffered in the payment of expenses, the price of transportation, and the fall in value of the lumber before it could be forwarded to the Boston market. It is a fatal objection to this motion, that it no where appears that the mortgage was in evidence before the jury. Without proof of the mortgage, there was not the slightest color for the replevin suitj it was a most vexatious and unwarrantable proceeding, and the jury would be well warranted in giving heavy damages —they might allow smart money.

But if the mortgage had been given in evidence, there was no proof going to show that Fitch & Losee acted in good faith in taking the property under it, and there was evidence from which the jury might find that they were influenced by unworthy motives, such as the law will not tolerate. I do not think it necessary to state the evidence although I have examined it with care. I should have been as well, if not better satisfied, had the jury given less damages. But it is impossible to say that any rule of law has been violated, and this is a case where we cannot disturb the verdict of the jury without interfering with settled principles. 15 Wendell, 368. 15 Johns. R. 493.

Motion denied.