Hun.]

FIFTH DEPARTMENT, JUNE TERM, 1895.

In considering the questions presented by this appeal we are confined to a review of the questions of law only, as the case fails to state that all the evidence bearing upon the questions 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 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 damage 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 forty acres of wheat upon the ground at the commencement of the term and the defendant left only twenty-two acres, being eighteen 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 one dollar and five cents 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 findings 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 eighteenfortieths of the 205 bushels which he received from the first crop at one dollar and five cents per bushel which he found amounted to ninety-six dollars and eighty-six cents. We do not see upon what principle the plaintiff was entitled to the one dollar and five cents per bushel, for the evidence shows that at the time of the breach of the contract wheat was selling for only seventy-five cents a bushel. Had the defendant's agreement been to deliver to plaintiff at the

FIFTH DEPARTMENT, JUNE TERM, 1895.

[Vol. 88. 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 twentytwo 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 eighteen 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 eighteenfortieths of 205 bushels, being ninety-two and one-quarter bushels, which he should have computed at seventy-five cents a bushel, making sixty-nine dollars and eighteen cents. From this sum there should be deducted the value of eighteen bushels of seed wheat at seventy-five cents a bushel, thirteen dollars and fifty cents, and the expense of harvesting, eighteen dollars, making thirty-one dollars and fifty cents, which taken from the sixty-nine dollars and eighteen cents would leave thirty-seven dollars and sixty-eight cents 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 thirty-five dollars, and charged the defendant with one-half thereof, seventeen dollars and fifty cents. 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

Hun.]

FIFTH DEPARTMENT, JUNE TERM, 1895.

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 ten dollars 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 forty-nine dollars and forty-two cents interest; this was error; the damages were for breach of contract and were unliquidated and-could not be ascertained by computation. (Mansfield v N. Y. C. & H. R. R. R. Co., 114 N. Y. 331.)

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.

BRADLEY and WARD, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulate to deduct $127.35 from the amount of the recovery, and in that event judgment as thus modified affirmed, without costs of this appeal to either party.

FIFTH DEPARTMENT, JUNE TERM, 1895.

[Vol. 88.

WALTER H. SHERMAN, Respondent, v. JULIUS ROBERTSON, Appellant. Action brought to recover for an alleged conversion — property delivered as collateral — evidence.

Upon the trial of an action brought to recover for the alleged conversion of a quantity of leather, the plaintiff claimed that the leather in question was deposited with the defendant as collateral security for certain renewal commercial paper only, while the defendant claimed that the property was delivered to him as security both for the renewal paper and also for a further indebtedness of the plaintiff to him.

The evidence fairly justified the conclusion that the property when delivered was delivered as collateral security for the payment of the renewal commercial paper only. Shortly after the leather was sent to the defendant, he, in a letter written in acknowledgment of the receipt of the bill of lading, stated that he would take due care of the property delivered as collateral "until pending obligations have been met by you."

Held, that such expression did not conclude the plaintiff from asserting a right to the return of the property after the payment of such renewal paper only, and that whether or not the security furnished by the leather extended beyond the renewal notes was a question of fact for the jury.

It was also shown upon the trial that, in the beginning of the negotiation for the renewal of the maturing notes, an employee of the plaintiff called upon the defendant, and had an interview with him upon the subject, as he had been instructed by his employer to do, and there was evidence to the effect that the defendant then made to such employee a proposition as to the terms and conditions upon which a renewal of the notes would be granted, and requested him to submit the proposition by letter to his employer, and by it request his employer to wire the defendant, whether or not he accepted it. The employee wrote a letter which was followed by a telegram from the employer accepting the proposition.

Held, that the letter, abstractly considered, was not competent as evidence, but, in view of the fact that it appeared to state the proposition as made by the defendant, and was sent at his request and acted upon by acceptance, it was competent evidence, in connection with proof that it contained the proposition as made by the defendant, tending to prove the proposition which the plaintiff accepted by his telegram.

APPEAL by the defendant, Julius Robertson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 4th day of October, 1894, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk's office on the 2d day of October, 1894, denying the defendant's motion for a new trial.

Frank M. Goff, for the appellant.

Hun]

FIFTH DEPARTMENT, JUNE TERM, 1895.

H. L. Bennett, for the respondent.

BRADLEY, J.:

The action was brought to recover for the alleged conversion of a quantity of leather which the plaintiff and John M. Sherman, then constituting the firm of Sherman & Sherman, had placed in the hands of the defendant as collateral security for some indebtedness to him. The main controversy has relation to the extent of the security for which the leather was deposited with the defendant. The evidence on the part of the plaintiff tends to prove that it was solely as security for the payment of two notes of his firm of date July 26, 1893, for equal sums due at one and two months amounting to $551.50, while, on the part of the defendant, it is claimed that the leather was delivered to and held by him as security for the payment of those notes, and a further indebtedness of the plaintiff's firm to him existing in account and amounting to $244.25.

The purpose for which the leather was delivered to and taken by the defendant, as shown by the arrangement between him and the plaintiff's firm, rests mainly in written correspondence. The occasion for the security arose when they desired renewal of their note about to mature. This the defendant consented to do on condition that they furnished the collateral.

The two notes before referred to and the deposit of the leather were the result of that arrangement. And the correspondence in the outset and when the leather was sent to the defendant, fairly justifies the conclusion that it was delivered as collateral security for the payment of the renewed paper only. Shortly after the leather was sent to the defendant, he, in acknowledgment of the receipt of the bill of lading, inserted in his letter the expression that he would take due care of the property for the plaintiff's firm "until pending obligations have been met by you." It is urged that such expression shows that the leather was received by the defendant as security for the payment of the account as well as the notes, and that it concluded the plaintiff from asserting any right to the return of the property until payment of it was made. The most that the evidence permits to be said in that respect is that whether or not the security furnished by the leather extended beyond the renewed notes, was a question of fact for the jury. The notes were paid, and thereupon the plaintiff, who had become the sole owner of it, demanded the posHUN-VOL. LXXXVIII. 6