Davis v. Bowers Granite Co.

• Decision Date: 16 May 1903
• Citation: 54 A. 1084,75 Vt. 286
• Parties: DAVIS v. BOWERS GRANITE CO.
• Court: Vermont Supreme Court

54 A. 1084

75 Vt. 286

DAVIS

v. BOWERS GRANITE CO.

Supreme Court of Vermont. Caledonia.

May 16, 1903.

Exceptions from Caledonia County Court; Munson, Judge.

Action of trespass and trover by Chas. R. Davis against the Bowers Granite Company. Judgment for plaintiff, and defendant brings exceptions. Affirmed.

Argued before TYLER, START, WATSON, and HASELTON, JJ.

Taylor & Dutton, for plaintiff.

Senter & Senter, for defendant.

WATSON, J. This action is trespass de bonis asportatis, with a count in trover for a horse and wagon. The ad damnum is $200. The taking and conversion were on the 3d day of September, 1894. There was no evidence that the property was worth at the time of the conversion more than $185, nor to show any damages in excess of that sum. The jury returned a verdict for the plaintiff to recover $204.05. After verdict, and before judgment, the plaintiff was permitted to remit so much of the verdict as was in excess of $200. The defendant moved that the verdict be set aside on the ground that it was not warranted by the evidence, and that it was in contradiction of it. After the plaintiff filed his remittitur, the defendant's motion was overruled, and judgment rendered for the plaintiff for $200. To this the defendant excepted, and thereon he now contends that, as there was no evidence of any damages in excess of $185, the remittitur, if allowed, should have been for all in excess of that sum.

In assessing the damages, it was legitimate for the jury to consider not only the value of the property at the time of the conversion, but also the time which had elapsed since the conversion, to determine the fair compensation to the plaintiff for his injury. Clement v. Spear, 56 Vt. 401. Under this rule it cannot be said that the damages found were not warranted by the evidence and circumstances of the case, but, this action being one sounding merely in damages, the plaintiff could recover no greater sum than he had declared for. It was within the province of the court to allow the plaintiff to reduce his verdict to that sum by a remittitur, and then to render judgment accordingly. Tarbell v. Tarbell, 60 Vt. 486, 15 Atl. 104; Crampton v. The Valido Marble Co., 60 Vt 291, 15 Atl. 153, 1 L. R. A. 120.

The mortgage upon which the property in question was sold by the defendant's officer, together with the order referred to in the condition of the mortgage, designated as No. 8, 186, sent by the defendant to the plaintiff under date of December 13, 1893, were introduced in evidence. The consideration of the mortgage was not in question. If the condition of the mortgage had been broken, and 30 days had elapsed since the breach, the defendant had a right to sell the property upon the mortgage as he did. If the condition had not been broken, and such time elapsed, he had no right thus to sell it. Whether the condition had in fact been broken depended upon the terms of the condition and the performance thereof by the plaintiff, and not upon the facts and circumstances resulting in the giving of the mortgage. Therefore, in excluding the evidence offered of such facts a circumstances, there was no error.

The plaintiff's evidence tended to show that the stock used by the plaintiff in cutting the four stones described in the condition of the mortgage was of the quality and kind specified in the contract, and that said stones were completed by him according to the terms of said contract, except the lettering and certain links to be cut on the die and that as to these matters defendant had directed plaintiff not to proceed until the stones were completed in all other respects ready for inspection; that, when the stones were completed except in these particulars, plaintiff notified defendant, whereupon defendant's managers inspected the stones; that defendant refused to accept the stones, claiming certain defects, which the plaintiff's evidence tended to show did not exist; that by reason of this refusal plaintiff suspended work on the stones; that the stones still remain in plaintiff's yard; and that plaintiff has always stood and still stands ready to complete the work, and would have done so at that time but for the defendant's refusal to accept. Letters written by the parties, which had a bearing upon the question whether the plaintiff had satisfied the condition of the mortgage by performing his contract, were introduced in evidence. Of the letters so introduced there were two from the defendant to the plaintiff—one dated July 10, 1894, and the other July 14, 1894. The court charged the jury in part that the contract imposed in the condition of the mortgage was the entire contract, and the plaintiff could...