Opinion
March, 1797.
White and Bayard for plaintiff. Miller for defendant.
On the fifth day of September, 1794, the plaintiff had delivered to the defendant 187 bushels of wheat, the defendant promising by his receipt to deliver twenty-five bushels of it to Moses and Benjamin Thomas, and 162 to Jonathan Brown. The defendant kept a store for the purpose of receiving and storing grain according to the custom of the country. Brown was a common carrier. In December, 1794, the defendant, without the order of the plaintiff, sent the wheat to Philadelphia, where it was sold at great loss in consequence of being damaged. When the wheat was delivered to Lofland the market price was about eight shillings three pence. In the spring of 1795 the price of wheat rose to fourteen shillings and afterwards increased.
It was contended by the defendant's counsel that the defendant had a right to make use of the wheat, accounting to the plaintiff for the value at the time it was delivered. That even if the defendant had no such right, yet the plaintiff could be entitled to damages to no greater amount than the value of the wheat when the defendant made use of it.
The nature of the defendant's undertaking was to safely store and keep the wheat of the plaintiff and upon demand to deliver him the same wheat or an equal quantity of the same quality and goodness. The defendant not having done this has subjected himself to the present demand; and we are clearly of opinion that the jury not only may but ought to give the highest price in damages at which wheat has sold at any time between the delivery to the defendant and the bringing of this action. It is also in the discretion of the jury to allow the plaintiff damages according to the rate of interest from the time at which they assume the price of wheat. For at that time it is supposed. that if the wheat had been delivered to the plaintiff, as it ought to have been, he could have sold it for the current price and of consequence from that time would have had the use of the money. The detention from this period is an injury for which the rate of interest is the usual standard of damages.
Verdict was agreeable to this charge.