
    (88 Hun, 35.)
    BUTTON v. KINNITZ.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. Indemnity—Settlement op Unliquidated Claim.
    Where plaintiff placed cattle owned by him in charge of defendant, who negligently permitted them to escape and injure the garden of a third person, plaintiff may on the demand of the owner of the garden, and without waiting until the damages are assessed against him by action, pay the damages inflicted by the cattle, and recover the amount therefor from defendant.
    3. Trover and Conversion—Joint Ownership op Chattel.
    Where a tenant of premises, on removing therefrom, took with him a wagon owned jointly by himself and the landlord, and stored it In the barn of a third person, he is not liable to the landlord for half the value of the wagon as for a conversion thereof, as he had a right, with the landlord, to its possession.
    8. Interest—Damages por Breach op Contract.
    Interest cannot be allowed on damages for breach of contract which are unliquidated and cannot be ascertained by computation.
    Appeal from judgment on report of referee.
    Action by Ransford Button against Andrew Kinnitz. From a judgment entered in Seneca county in favor of plaintiff, defendant ' appeals.
    Modified.
    Argued before LEWIS, BRADLEY, and WARD, JJ.
    G-. & W. M. Wilcoxen, for appellant.
    Hammond & Hammond, for respondent.
   LEWIS, J.

The plaintiff, by a written lease dated the 5th day of April, 1890, leased to the defendant, to work upon shares, his farm in Seneca county, for the term of one year, with the privilege to the defendant of continuing the lease for one or two years longer. The defendant entered Into possession, and remained through the first year, and into the second year, until February, when he surrendered possession. Misunderstandings arose between the parties, and this action was commenced in September, 1891, while the defendant was still in possession of the farm. The items of the respective accounts of the parties were very numerous, and ranged in amount from 25 cents up to hundreds of dollars. The trial occupied—so it is stated by the counsel in their briefs—from 30 to 40 days. The referee appears to have discharged his onerous duties with a desire to do justice to the parties, as is evidenced by the fact that, out of 37 pages of his findings, the appellant excepted to only four of the findings in favor of the plaintiff, which are as follows:

“(1) To damages to Russell’s garden, 85; (2) to damages for sowing 18 acres less wheat than in 1891, 890.86; (3) for one-half of the value of the Vosburgh wagon, 817.50; (4) damages to cows, 8340.”

In considering the questions presented by this appeal, we are confined to a review of questions of law only, as the case fails to state that all the evidence bearing upon the question sought to be reviewed has been included in it The plaintiff was the owner of a large number of cows kept upon the farm, and by the arrangement the defendant had charge of them. Through the negligence of the defendant, the cows escaped from the barn in which they were kept, and damaged a neighbor’s garden to the extent of five dollars. The defendant neglected to pay this damage. On demand of the owner of the garden, the plaintiff paid the five dollars. This he did without the defendant’s having requested him so to do. The plaintiff being the owner of the cattle, he was liable to the owner of the garden for the damages caused by the trespass. He was not required to wait until the damages were assessed by an action, before paying them, as the defendant had negligently caused the damage.

By the terms of the lease the defendant agreed to leave as much wheat growing upon the ground as there was upon the farm at the date of the lease. There were 40 acres of wheat upon the ground at the commencement of the term, and the defendant left only 22 acres, being 18 acres short of the amount he agreed to sow the last year. The wheat upon the ground when the defendant took the farm produced 410 bushels, which was then worth $1.05 per bushel, making $430.50. The defendant was entitled to one-half of this amount. The defendant, having been guilty of a breach of his contract, was liable to the plaintiff for the damages which he sustained. The referee, in arriving at his finding upon this claim, seems to have proceeded upon the theory that the transaction amounted to a sale by the plaintiff to the defendant of the wheat crop of the first year, and that the defendant was therefore liable for 18/4o of the 205 bushels which he received from the first crop, at $1.05 per bushel, which he found amounted to $96.86. We do not see upon what principle the plaintiff was entitled to the $1.05 per bushel, for the evidence shows that, at the time of the breach of the contract, wheat was selling for only 75 cents a bushel. Had the defendant’s agreement been to deliver to plaintiff at the end of the term an amount of wheat equal to the first year’s crop, the measure of damages would have been the value of the wheat at the time of the breach of the contract, and not its value when the first crop was harvested. The lease provided that the plaintiff was to furnish one-half of the seed wheat for the last crop. The evidence shows it would have required one bushel per acre. The plaintiff was obliged to harvest the crop, which was worth one dollar per acre. There was an absence of any evidence as to the cost of marketing the crop. The evidence tended to show that the 22 acres which the defendant sowed the last year produced but five bushels an acre. We are not furnished with any evidence from which to determine how much the 18 acres would have probably produced, if sown, and in the absence of this information the referee correctly held that the plaintiff was entitled to recover the value of 18/4o of 205 bushels, being 92{- bushels, which he should have computed at 75 cents a bushel, making $69.18. From this sum there should be deducted the value of 18 bushels of seed wheat at 75 cents a bushel, $13.50, and the expense of harvesting, $18, making $31.50, which taken from the $69.18 would leave $37.68 as the amount of damages to which the plaintiff was entitled for the breach of this part of the contract.

There was a wagon used upon the farm, which was the joint property of the parties. When the defendant left the farm, he took the wagon with him, and stored it in a neighbor’s barn. The referee found its value to have been $35, and charged the defendant with one-half thereof, $17.50. There was an absence of any evidence showing that the defendant in any manner ignored the plaintiff’s interest in the wagon. As the joint owner with the plaintiff, he had an equal right to its possession. We are not aware of any principle of law upon which he could be charged with this item. The defendant was required by the lease to take charge of the cattle upon the farm, and to return them to the plaintiff, at the termination of his lease, in as good condition as when taken, natural wear and damage thereto excepted. The evidence tended to show that during the last year of his term he failed to take proper care of the cows, and when he left the farm they were in a very poor and bad condition. The referee found that in consequence.of this neglect of the defendant the cattle were worth $10 a head less, being $238, in the spring of 1892 than they would have been, had they been properly cared for and in fair condition. This item seems large, and raises a suspicion in our minds that injustice was done the defendant in this finding; but, as we are not at liberty to review the facts, this finding cannot be disturbed.

The referee included in the amount for which judgment was directed and recovery had against the defendant $49.42 interest. This was error. The damages were for breach of contract, and were unliquidated, and could not be ascertained by computation. Mansfield v. Railroad Co., 114 N. Y. 331, 21 N. E. 735, 1037.

The referee found that the plaintiff sold a calf for $2.50, one-half of which belonged to the defendant, and for which the plaintiff had not paid the defendant. By an obvious oversight, his conclusion of law was that this item should be disallowed. He evidently intended to allow this sum to the defendant.

There should be deducted from the recovery on account of wheat $59.18, $17.50 for the wagon, the $1.25 mentioned, and the interest item of $49.42, making in all $127.35. The judgment should be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulate to deduct from the amount of his recovery the sum of $127.35; and, in case such stipulation be given, then the judgment, as thus modified, should be affirmed, without costs of this appeal to either party. All concur.  