Carpenter v. Manhattan Life Insurance

I concur with, reluctance.

Judgment and order denying new trial reversed and new trial ¡granted; costs to abide event.

This is a hard action. The plaintiff was the owner of some hothouse plants which remained upon defendant’s premises by its assent, and to accommodate the plaintiff. The plaintiff was notified to remove them, and he delayed doing so for a considerable time but when he did endeavor to get them, the defendant refused to •deliver them to the plaintiff. This was on Saturday, May 17,1879. On Monday following, the defendant told the plaintiff he might have the plants,, ' -On Tuesday, May 20, 1879, this suit was commenced. The-'court.chaa'ged the jury that the plaintiff was entitled so recover the difference between the market value of the property on Saturday and on Monday, when they were tendered back. "W e think in this charge the court erred. The conversion was made out by a refusal to deliver the property on Saturday. The plaintiff’s right of action was then complete, and could not be destroyed without his consent. If, after a conversion, the goods are received back, •either before or after suit brought, it goes to mitigate the damages, iS$5?*Eo further. A party whose goods are converted, cannot be forced to receive them back. (Livermore v. Northrup, 44 N. Y., 107; Reynolds v. Shuler, 5 Cow., 323.) The judgment should therefore be reversed and a new trial granted, costs to abide event.