Opinion
Decided December, 1881.
In trover, special damages cannot be recovered unless they are laid in the declaration.
The unauthorized use, by an agister, of cattle in his custody, is a conversion.
If the property converted has been returned to and accepted by the plaintiff, the measure of damages is the difference between its value at the time of the conversion and at the time of its return.
TROVER for oxen. Facts found by a referee. The declaration is in common form, and contains no allegation of special damages. June 14, 1877, the plaintiff bought the oxen of the defendant, who, as a part of the trade, agreed to pasture them without charge in a certain field until July 1. Instead of pasturing them in that field, he kept them in another field of inferior quality, and also worked them without the plaintiff's knowledge or consent, whereby the oxen were diminished in weight and value. June 28, 1877, the plaintiff charged the defendant with having worked the oxen (which the defendant denied), demanded damages of him for the breach of his agreement, and took the cattle away. The plaintiff claims that by reason of the defendant's misconduct he was obliged to keep the oxen two months after July 1 before they were marketable, and to recover damages (1) for working the oxen, (2) for their shrinkage in weight, (3) for two months' interest on the purchase-money, and (4) for the cost of pasturing the oxen two months. He made no demand upon the defendant except for damages as above stated.
Copeland Dodge, for the plaintiff.
Marston Eastman, for the defendant.
That the unauthorized use of the oxen by the defendant was a conversion, is not seriously controverted by the defendant, nor can it be. All those somewhat numerous cases wherein it is held that the driving of a horse, hired to go to one place, to another and a different place, is a conversion, are directly in point.
In an action of trover, the value of the property at the time of the conversion (with interest after) is in general the measure of damages. A return and acceptance of the property after conversion, whether before or after suit, go only in mitigation of damages.
Upon general principles of pleading, as well as upon express authority, the plaintiff, in trover, cannot recover special damages which are not laid in his declaration. Whether, therefore, the plaintiff in this case could or could not have recovered any of the items of special damage claimed by him before the referee, if the same had been properly alleged in his declaration, need not be considered. The plaintiff is entitled to judgment for the difference between the value of the oxen at the time of the conversion and their value at the time they were taken by him.
Judgment for the plaintiff.
SMITH, J., did not sit: the others concurred.