Ferguson v. Hogan

1. This is an action of claim and delivery, in which the plaintiff seeks to recover four horses, alleged to have been wrongfully taken and detained by defendant, or their value, together with damages for their detention. Upon the trial, plaintiff was permitted to prove (defendant objecting) the value of the use of the horses during the time of their detention. In an action of this kind, the value of the use of property during its wrongful detention may properly be shown and considered in the matter of damages. Sherman v. Clark, 24 Minn. 37; Yandle v. Kingsbury, 17 Kans. 195. But as damages, other than nominal, do not necessarily accrue from the loss of such use, they are special. 1 Chit. Pl. 458; Sedg. on Damages (6th ed.) 575; Spencer v. St. Paul & Sioux City R. Co., 21 Minn. 362. They must therefore be specially pleaded. Gray v. Bullard, 22 Minn. 278. They were not so pleaded in this case, and hence the court erred in admitting proof of them, in the face of defendant’s objection.

2. The plaintiff offered in evidence a written contract entered into by him, for cutting and stacking hay for one Flanner. The contract was offered and received for the purpose only of showing that thére were “use and business” for plaintiff’s horses during the time of their detention by defendant. The evidence was objectionable for two reasons: Firstr it was entirely irrelevant, because, as we have seen, no damages, arising from the loss of the use of the horses, were pleaded; secondly, it appeared that the contract was made after this action was commenced, and after the horses were replevied from defendant’s possession, and that it was made for the purpose of being used upon the trial, for which purpose it was antedated. Now, if the pleadings had been such as to warrant the admission of evidence showing a demand for horse-work during defendant’s detention of plaintiff’s horses, it is evident that this contract, made after such detention, would have no tendency to show such demand. The contract was therefore improperly received.

*1403. The chattel mortgage involved in this case provided for the payment, out of the avails of the sale of the mortgaged property, of “all expenses for the sale and keep of said property.” The words, “all expenses for the sale,” as here used, include only such expenses as are incurred in doing such things as form part of the proceedings of sale; they include the expense of a copy of the mortgage, of taking the mortgaged property, of giving notice of sale, and of conducting and completing the sale; they do not include the mortgagee’s expenses, “ incurred in placing the copy in a sheriff’s hands, or in attending the sale.” As applied to*the case of a sale, the words, “ all expenses for the sale and keep of said property,” appear to be substantially equivalent to the statutory words found in section 6 of the chattel-mortgage act, (Gen. St. c. 39,) viz.: “All reasonable and lawful charges and expenses, incurred in the care and custody of the property, or otherwise arising from the mortgage.”

4. The plaintiff executed and delivered to defendant a written instrument, as follows, viz :

“ $300. Litchfield, Minn., March 29, 1877.

“For value received, I promise to pay to John M. Hogan, on or before July 20, 1877, three hundred dollars, to be paid in breaking land for the said Hogan in section 25, town 121, range 39, in the town of Benson, Swift county, Minnesota, at the stipulated price of three dollars per acre.

“James Ferguson.”

To secure the liability created by this instrument, plaintiff executed and delivered to defendant a chattel mortgage, by the condition of which, in case of a default in the payment of the said debt and interest, or any part thereof, at the time above provided, the defendant was authorized to take possession of and sell the mortgaged property, the avails, less expenses for sale and keep, to “be applied towards the payment of said debt.”

There is no little diversity of opinion as to the nature of the obligation assumed by the maker of what is called a note *141payable in specific articles or specific services. By some it is held that the maker has an option to discharge his obligation by a delivery of the articles, or a performance of the services, (as the ease may be,) or by a money payment of the gross sum named in the note. Under this holding, the measure of damages, in case of non-delivery or non-performance, is the gross sum named, with interest. By others it is held that the maker can discharge his obligation only by delivering the articles or performing the services, and that the measure of damages in case of non-delivery or non-performance is not the gross sum named, with interest, but the actual value of the articles-or of the services, with interest. The preponderance of authority is with the former of these holdings. See cases collected in Heywood v. Heywood, 42 Me. 229; Field on Damages, § 229. Without now attempting to determine the whole question involved in these diverse holdings, we are of' opinion that, in case of a note like that before us, when the promise is in terms to pay a gross sum of money in specified services, at a specified rate, the parties are to be taken as having put a valuation upon the contract, and as thus having themselves fixed and limited the damages resulting from its breach. The damages being thus fixed and liquidated, the sum recoverable for the breach is made certain. Hence, in a ease in which the maker of such note can derive any advantage from a tender, the amount necessary to be tendered on account of the breach is definitely ascertained, so that a tender can be made. As applied to a case like this at bar, these views of the construction and effect of a note like that made by the plaintiff enable the maker of such note to redeem from a chattel mortgage given to secure the same, by paying or tendering in money the amount for which he is liable thereon, thus made definite, together with enough more to cover interest thereon from the time when it became due, and all proper charges for sale and keep. These views are not precisely those expressed by the court below, in its instruction to the jury upon the points *142to which they relate, though perhaps, as applied to the particular facts of this ease as it now stands, the practical difference may not be -very great. With reference to a new trial, we have, however, deemed it necessary to state what we deem to be the rules of law applicable to the case.

Irrespective of the charge of the court, there must be a new trial on account of the erroneous admission of evidence, as before indicated, and this renders it unnecessary for us to consider the point made as to the insufficiency of the tender claimed to have been made by plaintiff.

Order reversed.