
    The New York Guaranty and Indemnity Company, Respondent, v. Terence Flynn et al., Appellants.
    (Argued December 2, 1873;
    decided December 9, 1873.)
    The successful party in an action to recover the possession of personal property, in case recovery or return thereof cannot be had, is entitled to its value at the time of trial, and not at any intermediate time between the taking and the trial. If the value has been impaired during the detention, it should be included in the assessment of the damages caused by the detention.
    In the absence of any proof that the damages are more or less than the interest on the value, the presumption is that the damages are the interest during the time that the successful party was wrongfully deprived of the use.
    This was an action to recover possession of ninety-three bales of cotton.
    Shute & Co., of New York, wrote to Brigham, Holst & Co., of Georgia, requesting the latter firm to purchase and ship to them 100 bales of cotton. Brigham, Holst & Co. purchased the cotton and sent it to New York, taking a bill of lading therefor deliverable to their order. They sent a draft drawn by them upon Shute & Co., at fifteen days, for the cost of the cotton, to defendant, Baldwin, of New York, accompanied by the bill of lading, indorsed to Baldwin, with instructions .not to deliver the bill to Shute & Co. until satisfied that the draft would be paid at maturity, they advised Shute & Co. of the shipment and draft. Baldwin not being satisfied that thé draft would be paid, stored the cotton, taking a receipt in his own name. He made an agreement with Shute & Co. that they should accept the draft, and, if paid at maturity, they should have the property; if they did not pay, they were to abandon all claims and allow Baldwin to sell the cotton to meet the draft. Shute & Co. did not pay the draft at maturity, and it was protested. Defendant, thereafter, having purchased ninety-three bales of Shute & Co., tendered to Baldwin the purchase-price for that amount, which Baldwin refused to receive. The latter subsequently sold the property. The plaintiff made advances thereon to the purchaser, and took the same into its custody. Defendant, Flynn, commenced an action against Baldwin et al., to recover possession of the ninety-three bales, under the requisition in which that amount was taken from plaintiff’s possession, whereupon this action was commenced.
    
      Held,, that the sale to Shute & Co. was at best but a conditional one, under which no title passed until performance, and, not having performed, no title passed to them, and consequently none passed to defendant, Flynn; that a tender of the whole amount of the draft, without acceptance by Brigham, Holst & Co., would not give a title, certainly not a tender of a portion thereof. <
    As to the value of the property proper to be stated in the judgment, and the measure of damages, the court held as above stated.
    
      Samuel Hand for the appellants.
    
      George W. Parsons for the respondent.
   Grover, J.,

reads for affirmance.

All concur, except Church, Ch. J., not voting; Folger, J., concurring in result.

Judgment affirmed.  