
    DANIEL M. REDMOND, Appellant v. AMERICAN MANUFACTURING COMPANY, Respondent.
    
      Machines, damages in replevin or trover for unlawful detention of, when restricted to interest on the value.
    
    Where machines are manufactured by a party for another under an agreement that the latter party should have at the expiration of a specified period the option of either returning them or purchasing them paying therefor a certain ■ agreed price, and such latter party at the conclusion of the period does not elect to purchase, and neglects to return them after due demand, the damages for detention are restricted to interest on the value of the machines at the time of the demand (the element of depreciation in value not being involved), where it does not appear that it was the intention of the former party, or that it was possible for him to use the machines except to sell them, and it not appearing that there were any peculiar circumstances of wilfulness or malice attendant on the detention.
    
      Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided January 7, 1889.
    Appeal by plaintiff from a portion of a judgment in his favor.
    This is an action of replevin for certain machinery. The case was submitted to the jury who found the title' to the property to be in the plaintiff, and that he was entitled to its return and assessed the value of the property at $2,100, and the damages for detention at $445.
    Upon this verdict judgment was entered, adjudging the title to the property to be in plaintiff; that plaintiff recover possession thereof; that if delivery of possession could not be had, then that plaintiff recover the value of the property; and further adjudging, that plaintiff’ recover $445, damages for detention of the property.
    It is from the portion of the judgment adjudging a recovery of $445, damages for detention, that plaintiff appeals.
    The facts sufficiently appear in the opinion.
    
      Charles A. Murphy, attorney and of counsel, and William R. Spooner, of counsel, for appellant, on the questions considered in the opinion, argued:—
    In the case of detention of a chattel, having only a' market or cash value, and not susceptible of use to give' it a special or usable value, interest upon the market or cash value of the article for the period of detention is the correct measure of damages for detention. But in the case of detention of a chattel which is susceptible of use to give it a special or usable value, such as a horse or other domestic animal capable of hire for work, or a machine, or a boat or vessel, etc., the correct measure of damages for detention, is not the interest upon market or cash value, but the usable value of the chattel for the period of detention. Allen v. Fox, 51 N. Y. 562 ; Slocum v. Delano, 17 Weekly Digest, 207.
    
      Souther & Stedman, attorneys, and C. E. Souther of counsel, for respondent, on the questions considered in the opinion, argued :—
    The rulings on the measure of damages were correct. “ The measure of plaintiff’s damages is the interest on the value of the property while in defendant’s possession, unless the proofs show that the use of the property was of greater value than such interest.” Keep v. Kaufmann, 38 N. Y. Super. Ct. 476.
   By the Court.—Ingraham, J.

The only question presented on this appeal, is the exception to the ruling of the court sustaining the defendant’s objection to the testimony offered by the plaintiff as to the usable value of the machines sued for, during the period of their detention, as the measure of plaintiff’s damages for that detention; and such evidence was excluded on the ground that the damages for the detention of the machines in question must be confined to the interest upon the market value of the machines at the time of the demand.

The complaint alleges that in the summer of 1883, plaintiff being the inventor of certain machines, agreed with the • defendant that plaintiff would manufacture and set up in the defendant’s factory fourteen machines, and that at the expiration of a period named defendant should have the option of returning said machines to plaintiff, or of purchasing the same and paying plaintiff therefor a certain agreed price; that at the conclusion of such period, defendant did not elect to purchase said machines and pay therefor the agreed price or value thereof, and that said defendant has, since plaintiff duly demanded the said machines on or about October 27, 1884, unlawfully detained the same, to the plaintiff’s damage in the sum of $15,000, and demands judgment for the recovery or possession of said machines, or for the sum of $7,500, the' value thereof, together with the sum of $15,000, his damages for the detention thereof, besides the costs of the action.

Plaintiff introduced evidence tending to prove the contract set up in the complaint, and that the machines in question were manufactured for the defendant under the contract and delivered to him.

The theory upon which the case was tried by the plaintiff appears to have been, that the measure of damages for the detention of the machines was what the defendant would have made by them had it kept them and used them properly; not the amount that would compensate plaintiff for the injury that he sustained in consequence of the refusal of the defendant to deliver the machines to him.

The cardinal principle controlling the question of the measure of damages in these cases, is compensation to the injured party for the wrong committed, and it is neither alleged in the complaint in this action nor proved upon the trial that any use could have been made by the plaintiff of these machines which, had the machines been returned to him when demanded, would have enabled him to realize more than the interest of the value of the machines allowed to him by the jury on the trial.

As was said by Earle, Commissioner, in Allen v. Fox, 51 N. Y. 563, “ the proper rule of damages to be applied to cases, as they arise in the courts, has always been a fruitful subject of discussion and difference among judges and jurists. In actions of tort the aim of the law is to give the injured party a full indemnity and no more, unless the injury has been wilful or malicious. Remote, contingent and uncertain damages are excluded, but it is not always easy to determine what damages ought to be classified as such”; and after discussing the duty of the jury in assessing the value of the property in an action for replevin the judge says “ With this rule in view, what should be the measure of damages for the detention ? In many cases, interest on the value from the time of the wrongful taking would be the proper measure. It would be generally in all cases where the property detained was merchandise kept for sale, grain and all other articles of property, useful only for sale or consumption. In such a case if the owner recovers the interest on the value of his property from the time he was deprived of it, he will generally have a complete indemnity, unless the property has depreciated in value, in such case the depreciation must be added to the interest on the value, taken as it was before the depreciation, and the two items will furnish the amount of damage.” I think this rule should be applied to the case at bar.

As before stated, the machines were manufactured not for use by the plaintiff but for sale to the defendant, and there is no evidence that it was the intention of the plaintiff, or that it was possible for him to use the machines, except to sell them, and the plaintiff will be fully indemnified by allowing him as damages for detention, interest on the value of the machines at the time he demanded them, for that would be the amount that he would receive had the machines been returned to him at that time and he had sold them.

The case of Allen v. Fox, supra, was an action of replevin to recover the possession of a horse, and the jury was allowed in that case to assess the value of the use of the horse as damages for the detention. But the damages there allowed was the value of the use of the horse to the plaintiff, and where the value of the use depended upon the particular use to which the article sought to be recovered is applied, there must be at least some evidence to show, or from which the jury can infer, that the property in question would have been so applied had it been delivered to plaintiff. Without such evidence the plaintiff is not only allowed to recover compensation, but profit that it does not appear that he would or could have made..

My opinion is, therefore, that the evidence was properly excluded by the trial judge, and that there was no error in his refusal to charge as requested on the measure of damages for the detention, and as no other question is presented on this appeal, the judgment and order appealed from should be' affirmed with costs.

Sedgwick, Ch. J., concurred.  