
    J. O. BOWEN v. J. C. KING and C. J. HARRIS.
    (Filed 14 December, 1907).
    1. Claim and Delivery — Possession—Pleadings—Damages.
    While an action of claim and delivery for the possession of personal property cannot be maintained unless the defendant had the possession at the time of the commencement of the action, such is not necessary for the recovery of damages when, from the perusal of the entire pleadings, it is evident that the demand was not intended to be for the possession, but to recover damages caused by reason of the wrongful seizure and detention of the property.
    . 2. Same' — Procedure—Former Action — Damages—Different Action.
    While plaintiff could have had his damages assessed in a former action of claim and delivery, brought by him for the wrongful seizure and detention of his property under an attachment in a suit brought by defendant against another (Revisal, sec. 570), he was not required to take this course, but, after regaining possession, could, in another action, recover damages for the injury done thereby.
    3. Same — Attachment—Wrongful Seizure — Mortgagor—Possession— Procedure.
    When, under an attachment in an action brought by defendant against another who was his debtor, plaintiff’s personal property was seized and wrongfully detained, it is no defense that the plaintiff was a mortgage debtor of the other person in possession, whose property was the subject of the levy. The right of the mortgagee in the property was simply that of a creditor, and his interests as a creditor could only be levied on in the hands of the mortgagor in possession, as directed by provisions of Revisal, sec. 767, to be collected and applied under the direction and supervision of the court.
    4. Measure of Damages — Pure Tort — Consequential Damages.
    When, under a levy upon the goods of the debtor of defendant, the plaintiff’s property has been wrongfully seized and detained, to his damage, the wrongful act is a “pure tort,” and the wrongdoer is responsible for all the damages directly caused by his misconduct, and for all indirect and consequential damages which are the natural and probable effect of the wrong, under the facts as they existed at the time the same was committed, and which can be ascertained with a reasonable degree of certainty.
    
      5. Measure of Damages, Consequential — Duty of Plaintiff — Reducing Damages.
    In an action for the recovery of damages, owing to the wrongful seizure and detention of plaintiff’s property, it is encumbent upon the injured party to do what he can in the exercise of due diligence to avoid or lessen the consequences of the wrong; and for any part of the loss incident to such failure no recovery can be had.
    6. Same.
    In an action for damages, brought by plaintiff for the wrongful seizure and detention of his teams, by which he claims a loss of profits under a contract he had with another, the damages awarded by the jury may be on the basis of profits he could have made during the time his work was necessarily interrupted; and, if this is allowed, he should not have, in addition, the direct damages arising from a fair value for the loss of the use of the team otherwise.
    7. Same — Wrongful Seizure — Replevin—Claim and Delivery.
    When there was evidence that replevin was allowable to plaintiff after his property had been wrongfully seized as that of another, and there is no claim and no testimony tending to show that this course could not have been at once taken, and thereby all the property replevied and almost the entire loss claimed by the plaintiff prevented, the defendants are entitled to have this view presented to the jury upon the question of the measure of damages.
    8. Same — Evidence—Consequential Damages, Remote.
    When, in an action for damages for the wrongful seizure and detention of plaintiff’s teams for eighteen .days, when such were claimed to be necessary for hauling logs, which were on that account carried away by a flood, it appeared that this was done some thirty days after the seizure and some twelve days after the possession of the team had been restored to him, the loss could not have been reasonably or naturally connected with the seizure, and consideration thereof should have been excluded from the jury.
    9. Evidence — Instructions—Conflicting Charge — Jury—Prejudice— Reversible Error.
    When the court properly charged the jury upon a phase of the evidence in accordance with defendants’ contention, but it appears that another part of his charge conflicted therewith, to defendants’ prejudice, it is reversible error.
    
      10. Measure of Damages — Evidence—Consequential Damages, when Recoverable.
    Action to recover damages for the wrongful seizure and detention for eighteen days of plaintiff’s teams, when they were returned to him, uninjured. Evidence tended to show that, at the time of the seizure, etc., defendant was under contract to deliver and was delivering logs for another at a mill, and had, depending upon the teams seized, other teams and hands, for which hauling feed, etc., were necessary, and by reason of the seizure the hands became demoralized: Held, that, in order to recover, it was necessary for .plaintiff to show that his business was necessarily and wrongfully interrupted for a definite time and to an extent which he could not have lessened by reasonable effort, and during such time he could, with the means at his disposal, have delivered a definite amount of lumber at a certain profit, and that such loss was sufficiently certain as a basis of consequential damages.
    
      (Johnson v. Railroad, 140 N. C., 574, approved).
    Civil actioN, tried before Allen, Jand a jury, at November Term, 1906, of tbe Superior Court of TbaNSylvaNIa County.
    Tbe cause of action, and orders made therein in reference to amendment of pleadings, are stated in tbe case on appeal, as follows: Tbe action was originally brought by tbe plaintiff against defendants, alleging that be was tbe owner of one team of mules, one team of horses, one four-horse wagon, four sets of harness, one carload of cotton-seed meal and bulls and about three hundred poplar logs of tbe value of $700. During tbe progress of tbe trial tbe plaintiff asked to be allowed to amend tbe first paragraph'of bis complaint by striking out tbe words “three hundred” and inserting in lieu thereof tbe words “eight hundred and forty,” making tbe said paragraph read “eight hundred and forty poplar logs” instead of “three hundred poplar logs.” The court, in the exercise of its discretion, allowed the amendment, to which order the defendants objected and excepted.
    There was evidence tending to show that defendants, having an account against tbe Benedict Love Company, sued out an attachment and bad same levied on two mules, two horses, a fotir-borse wagon, some harness and a lot of feed, as the property of said company, and held same for eighteen days; that plaintiff, claiming to own the property, had obtained possession of same before this action was brought. . How this was done does not distinctly appear, but by fair intendment it was brought about under order of the court in some former action of claim and delivery against the officer having charge and control of the property. On the-issue as to damages, and over the defendants’ objection, pointed by exceptions duly noted throughout, there was evidence offered tending to show that at the time of the seizure plaintiff had a contract to deliver logs at the mill of the Benedict Love Company- at the rate of 500,000 feet per month, and was engaged in proper performance of his contract; that he had sixty-five steers and seventy-five or a hundred hands at a logging camp some miles distant from a railroad station, and the feed was a part of his necessary supplies, and the teams were engaged in hauling the feed to his camp, and he was unable to procure other teams or feed within the period of eighteen days specified, and as a result of the seizure his hands became demoralized and left. His steers were necessarily idle during the time and unemployed, and if his work had not been so interrupted he could have delivered at the mill during this period as much as 300,000 feet of lumber, at a profit of $2 per thousand, and that he had the lumber accessible for the purpose of the contract. Plaintiff was further allowed to state, over defendants’ objection and with exceptions duly noted, that he was engaged in building a splash dam to carry the logs to defendants’ mill, some distance below, on the river, and had deposited seven or eight hundred logs on the river, ready to be moved, and that the building of the dam was likewise interrupted, and in about thirty days thereafter, owing to a flood in the river, the logs which had been put in position were washed away and lost, to the value of seven or eight hundred dollars.
    
      Issues were submitted and responded to by tbe jury, as follows:
    First. “Was the plaintiff, Bowen, the owner of the personal property described in his complaint, and entitled to the possession thereof?” Answer: “Yes.”
    Second. “Was the property wrongfully taken from the plaintiff’s possession by the defendants and wrongfully detained by them ?” Answer: “Yes.” '
    Third. “What damage has the plaintiff'sustained by reason of the wrongful taking and detention of the said property by the defendants ?” , Answer: “$1,250.”
    Exceptions to the charge were also noted and are referred to in the opinion. There was judgment on the verdict for plaintiff, and defendants excepted and appealed, v
    
      Welch Galloway and George A. SJmford for plaintiff.
    IF. W. Zachary for defendants.
   IIoKE, J.,

after stating the case: The court was asked to hold that, unless defendants had possession of the property at the time the present action was commenced, plaintiff could not recover. The position is correct, as applied to actions brought to recover the possession of the property itself. Such action only lies against the one who has possession of the property at the time the same is instituted. Webb v. Taylor, 80 N. C., 305; Haughton v. Newberry, 69 N. C., 456. While the allegation of the complaint may be broad enough to constitute a demand for the possession, it is evident, from a perusal of the entire pleadings, that the demand was not intended to be for the possession, which the plaintiff undoubtedly had when the action was commenced, but was to recover damages caused by reason of the wrongful seizure and detention of the property. As heretofore stated, it does not definitely appear how plaintiff reacquired possession of the property; but, assuming — and there are statements from some of the witnesses tending to show this — that the possession was restored by means of a former action of claim and delivery, while plaintiff could have had his damages assessed in the former action (Revisal, sec. 570), the authorities seem to be to the effect that he was not required to take this course, but, after obtaining possession, could, in another action, recover damages for the injury done by the wrongful seizure and detention of his property. Woody v. Jordan, 69 N. C., 189; Asher v. Reigenstein, 105 N. C., 213.

Again, the court was requested to charge that defendants could not be held liable in the present case because of the existence, at the time of the seizure, of an unsatisfied mortgage in favor of their debtor, the Benedict Love Company, and against which the attachment had been issued. This prayer for instructions was correctly refused by the court. In the absence of statutory provision, the interest of a mort'gagee in personal property while the mortgagor remains in possession, having also an interest therein, is not the subject of levy by direct seizure, either under attachment or execution. Freeman on Executions, secs. 118-184; 20 Amer. and Eng. Ency., 974. The right of the mortgagee in the property, on the facts, presented, was simply that of a creditor, and his interest as creditor could only be levied on as directed by provisions of Revisal, sec. 7 67, to b*e collected and applied under the direction and supervision of the court.

On the issue as to damages we think there was error. It is well established that, in a “pure tort,” the case presented here, the wrongdoer is responsible for all damages directly caused by his misconduct, and for all indirect or consequential damages which are the natural and probable effect of the wrong, under the facts as they exist at the time the same is committed and which can be ascertained with a reasonable degree of certainty. Johnson v. Railroad, 140 N. C., 574; Sharpe v. Powell, 7 L. R., 1892, p. 253; 8 Amer. and Eng. Ency., p. 598; Hale on Damages, 34, 35 et seq. This last author, in substance, says that a wrongdoer is liable for all damages wbicb are tbe proximate effect of bis wrong, and not for those wbicb are remote; “that direct losses are necessarily proximate, and compensation, therefore, is always recoverable; that consequential losses are proximate Avben tbe natural and probable effect of tbe wrong.” A well-recognized restriction, applying in cases of tort and contract, and as to both elements of damages, is to tbe effect that tbe injured party must do what be can in tbe exercise of reasonable care and diligence to avoid or lessen tbe consequences of tbe wrong, and for any part of tbe loss incident to such failure no recovery can be bad. This limitation was approved by us in a case of contract, in Tillinghast v. Cotton Mills, 143 N. C., 268, and directly applied to a case of tort, in Railway v. Hardware Co., 143 N. C., 54. A full consideration of tbe facts and tbe charge of tbe court leads us to the'conclusion that tbe defendants have not bad tbe benefit of this limitation in tbe trial of tbe present case. A verdict of $1,250 damages for tbe detention of two mules, two horses, a wagon and a lot of feed for a period of eighteen days, when they were all restored to tbe owner, uninjured, so far as tbe facts show, is an unusual amount of consequential damages, and to be sustained, if at all, only under very exceptional circumstances. We are inclined to tbe opinion that, if plaintiff should establish that tbe seizure of bis teams bad the necessary effect of interrupting bis operations in getting out lumber for a definite time, and be should show that, tbe lumber being obtainable and accessible, be could, during tbe time be was wrongfully deprived of bis property, have delivered as much as 300,000 feet of lumber, at a profit of $2 per thousand, this profit is tbe most definite and satisfactory rule for estimating bis loss that could be adopted, on tbe facts presented, tbe evidence being to tbe effect that no other employment was open to him; but such an interruption would only be natural and probable if it should be established as tbe necessary result of tbe defendants’ wrong, under exceptional conditions existing at the time, and then only to the extent that it could not have been avoided or diminished by reasonable diligence on the part of plaintiff. There is evidence tending to show that some of the property — the teams and wagons — was replevied from the’ officer under court proceedings. This was allowable to plaintiff when his property had been wrongfully seized as that of another. Mitchell v. Sims, 124 N. C., 411. And there is no claim, and no testimony tending to show, that this course could not have been at once taken, all the property replevied and almost the entire loss claimed by the plaintiff prevented. This was held to be encumbent on the party injured, if same could have been done by reasonable effort, in Railway v. Hardware Co., supra, and we think the defendants were entitled to have this view-presented to the jury. Or, if the plaintiff, under the circumstances and in a shorter time, and in the exercise of reasonable effort, could have procured other feed and have had it hauled by ox carts and other means, he should have taken this, if a reasonable and prudent course by which his loss could have been reduced. And it may be well here to note that, if the jury should award plaintiff damages on the basis of the profit he could have made during the time his work was necessarily interrupted, he should not have, in addition, the direct damages arising from a fair value for the loss of the use of the teams, because, in the event suggested, the use of the teams would be required in making the alleged profit. He can recover for the value of the use of the teams — this is direct damages' — but both should not be allowed. And as to the logs which had been placed on the river preparatory to being floated down by the completion and operation of the splash dam, the loss occurred more than thirty days after the seizure and more than twelve days after the teams had been recovered and the plaintiff had resumed business. There is no testimony or suggestion that the logs could not have been secured and saved by proper effort on the part of plaintiff and his employees, and we are of opinion that, on tbe facts presented, tbis loss bad no reasonable or natural connection with tbe seizure of plaintiff’s teams, and all consideration of it should bave been excluded from tbe jury. Tbe court did do tbis in one part of tbe cbarg'e, but in another be charged tbe jury as follows: “If plaintiff was prevented from floating lumber, which was bis, during tbe eighteen days, by reason of not having a team to prepare it, etc., and that was tbe direct cause of damage, and tbe logs lost in tbe meantime by flood, which would bave been prevented, then tbe jury will give actual damages resulting from such loss.” There was no evidence whatever of such loss during tbe eighteen days when plaintiff claims bis teams were wrongfully withheld from him. And in another part of tbe charge tbe court, in substance, told tbe jury that tbe loss by reason of logs carried away by tbe flood was too remote for recovery. Tbis conflict in tbe charge has, however, evidently operated to defendants’ prejudice, for it is only by allowing for tbe loss that tbe jury could bave awarded tbe sum given in tbe verdict.

TVe are referred by defendants to tbe case of Sledge v. Reed, 73 N. C., 440, as authority for tbe position that, on the facts in tbis case, only direct damage should be allowed— that is, a fair price for tbe use of the teams while wrongfully withheld. But consequential damages were refused in Sledge’s case because there was no evidence that plaintiff could not bave procured another horse, by 'reasonable effort, with which to make bis crop; and there was intimation, too, that tbe result of any given crop year was too uncertain to be regarded as the proximate result of plaintiff’s wrong. It is tbe general rule that damages which cannot be established with reasonable certainty, or which are contingent or speculative, cannot be allowed, and anticipated profits, in tbe ordinary sense of that term, are usually within tbe prohibition. As said-in Hale on Damages, however (p. '70), “Absolute certainty is not required, but both tbe cause and probable amount of tbe loss must be shown with reasonable certainty.” And, accordingly, it is held “that profits which would certainly be realized, but for defendant’s default, are recoverable.” A good illustration of this distinction will be found in Johnson’s case, supra, where, in negligent destruction of plaintiff’s factory for the manufacturing of baskets, crates, etc., it was held that profits on sales already made, and which plaintiff would have had the present ability to complete but for the wrong done him, were allowed as proximate, but anticipated profits which might otherwise arise from continuance of the business, on the facts there presented, were regarded as speculative and contingent, and, therefore, too remote for recovery.

We think, in the present case, that if it should be properly shown that plaintiff’s business was necessarily and wrongfully interrupted for a definite time, and to an extent which plaintiff could not have lessened by reasonable effort, and that during such time plaintiff could with the means at his disposal have delivered a definite amount of lumber at a certain profit, under the principle of Johnsons case, such a loss would be sufficiently certain for consideration and could be properly made the basis of the jury’s award of consequential damages. • -

Eor the error pointed out there will be a new trial on all of the issues, and it is so ordered.

New Trial.  