
    Stevens vs. Low.
    The vendee of goods received them at a stipulated price, payable in certain endorsed notes, on condition that within a given period he should deliver the notes, or return the goods; but áfterwards refusing to do either, the vendor sued him for the goods in trover : Held, that the measure of damages was the actual value of the goods and interest; and that the vendee was not concluded by the agreed value.
    
      Semble, that under such circumstances, the agreed price would be high evidence of actual value as against the wrong-doer, and no deduction should be made except upon strong proof.
    Had the vendor, instead-of electing to .disaffirm the contract, sued in assumpsit, he would have been entitled to the agreed price; subject perhaps even then, however, to a deduction, if it turned out that the notes stipulated for were of less value.
    On error from the superior court of the city of New-York. The suit below was trover, by Low vs. Stevens for certain mattresses, «fee. It was in proof that they were sold by Low to Stevens in the city of New-York, at an agreed price, payable in certain endorsed notes, and delivered to Stevens conditionally; i. e. he was, after going to and returning from Boston, to deliver the notes, or return the goods. On his return, Low demanded the goods or notes, but Stevens refused to deliver either.
    The defendant below offered to prove by one Hall,, that the value of the mattresses was much inferior to the agreed price. This was objected' to and overruled, on the ground-that the defendant could not, under the circumstances, question the agreed price. The defendant below excepted; and a verdict and judgment having been rendered against him, he sued out a writ of error.
    
      M. T. Reynolds, for the plaintiff in error.
    
      J. L. Wendell for the defendant in error.
   By the Court,

Co wen, J.

Had the plaintiff below brought assumpsit, he would have been entitled to the agreed price; subject, perhaps even then, however, to a deduction, if it should turn out in proof that the notes were of less value; for the payment was not to be in cash, but the specific notes of certain persons.()

The plaintiff below,, however, disaffirmed the contract of sale, as he had a right to do, and treated the defendant as having wrongfully converted the goods to his own use. The action was- trover, which goes for the actual value with interest. The defendant was a clear wrong-doer, and seems to have acted without excuse, in refusing- to deliver either the notes or the goods as he agreed. Yet I do not perceive any principle upon which he was estopped to question the value of the goods. Take even a stronger case: the vendee agrees to return a horse to the vendor if the former do not pay $100; and that, in the meantime, the property shall, not be deemed to pass. He refuses to return the horse,, and is sued in trover, the horse not being worth $10. The vendor thus throws his contract entirely away, and must content himself with the $10. To be sure the proof of inferiority must be quite strong, before a jury would, under, such circumstances, be warranted in allowing a deduction. The agreement of parties on the price would be high evidence of value; but even in such case, there is no rule that I am aware of, which would estop the defendant from showing the truth. The plaintiff waives that form of action (assumpsit,) under which the defendant would indeed be estopped, if every thing was fair on the part of the plaintiff. In trover, he says, “ I want the specific goods,” and it is quite common for the court to make a rule stopping the action, on a redelivery and payment of costs. (Vid. 2 Wheat. Selw. 1417.) • I think the judgment of the court below should .be reversed, and a venire de nova to go from that court; the costs to abide event.

Ordered accordingly. 
      
      
        (a) See Pinney v. Gleason, 5 Wend, 393, 395, et seq.
      
     