Fowler v. Gilman

54 Mass. 267

Opinion

Shaw, C. J.

It appears to us that the jury should have been instructed to deduct the fourteen dollars from the value of the wagon, in case of a verdict for the plaintiff. No doubt the true general rale of damages, in trover, is the value of the goods at the time of conversion, with interest. Kennedy v. Whitwell, 4 Pick. 466. This rule applies where the plaintiff is the general owner, or is answerable over to others. But where the plaintiff admits that the defendant has a lien on the property, to a certain amount, that amount may be deducted by the jury, in assessing damages. Green v. Farmer, 4 Bur. 2214, 2223. Chamberlin v. Shaw, 18 Pick. 283, Dresser Manuf. Co. v. Waterston, 3 Met. 9.

It is to be taken, in this case, and the plaintiff, by his tender, has admitted, that the defendant b ">d the same lien on the wagon which Orfut had when he sold his interest therein to the defendant, namely, a lien for the unpaid balance of the price which Henry Fowler had agreed to pay for the wagon, before it should become his property. The amount of that lien is agreed to have been fourteen dollars.

By consent of parties, the verdict may be amended by deducting fourteen dollars therefrom, and judgment be rendered on the verdict so amended. Otherwise, the verdict will be set aside, and a new trial had in the court of common pleas.