BRIGHTON 2.
MANlJ:F'GCO.
'U.
RELIANCE INS. CO.
235
a}ld unoccupied witbout ib,e knowledge and con$ent of, the company the policy should be void. Defendant, a manufacturing company, temporarily stopped work, and repaired its machinery; the night and day watchmen were on dilt:'} and the employes were at .and about the factory from its closing until it burned. Held, that the building was in no sense vacant and unoccupied; following Brighton Manujg 00. v. Reading Fire 171,8. 00., ante, 232. 3. SAME-CONDITIONS-CESSATION OF BUSINESS.
A policy of ;insurance provided ,tbatif the building insured became vacan't
lCANT' A:"ND UNOCCUPIED
A manufactuTing company which closes temporarily 'and repairs its machinery, and is burned down in eight days, cannot be said to have ceased operating 80 as, to, avoid a policy of insurance.
At Law. Suit to recover on polioy of insurance. The Brighton Manufacturing Company sued the Fire Association of, Philadelphia, to recover for a loss by fire. E. W. RusseU, for plaintiff. . Gary, Cody & Gary and Fred'k Ullman, for defendant. BLODGE'l"r, J. This is a suit upon a policy by the defendant upon tbe same property as that covered' by the policy in the preceding case; and the facts in the cases are essentially the same. The defenses set up are:' (1) That the risk was increased by a change in the occupation of the building, with the knowledge of the assured; (2) that the building was allowed by the to become vacant and unoccupied; (3) that, being a manufacturing 'establishment, it ceased to be operated. I have sufficiently considered the first two objections in the former case; and will' only say in regard to the third and last, that Ido not think, under the facts in this case, the factory can be said not to have been operated during the time manufacturing was suspended for eight days preceding the fire;' but, if I am wrong in my view as to the meaning and force of the term "ceased to be operatad, "the plaintiffs certainly had the right to stop temporarily for repairs. There will therefore be 8 finding for the plaintiff.
BRIGHTON MANUF'G
Co. v.
RELIANCE INS.
CO.
(OirCLU Court, N. D. nliitcls. July 25, 1887.)
At Law. Suit to recover on a policy of insurance. Action by the Brighton Manufacturing Company against the Reliance Insurance Company on a poliGY of insurance. ,E. W. Russell, forplainti.ff. '" f/ary, Cody &0 f/arll and F1'ed"k mZman, for ,i3LODGETl'. J. in this.case are the s,ameasln the preceding ca,se; and defenses set up that rIsk was increase.a With the kllowle<;lge pf. the assured, of which no notice was given to the defendant; that the assured allOWed the building to become vacant and unoccupied,· Without notice to the
236
FEDERAL REPORTER.
defendant; and that, being a manufacturing establishment, it ceased to be operated without the consent of the defendant. I have already passed upon these defenses in the preceding oase, and therefore the finding will be for the plaintiff.
:FIRE INS. Co. OF PENNSYLVANIA.
(O£rcuit Court, N. D. num,o'ls. July 25, 1887.)
At Law. Suit to recover on a fire insl:!rance policy. Ac:;tion by the Brighton Manufacturing Company against the Fire Insurance Company of the state of Pennsylvania on a policy of insurance. ' E. W. llussell, for plaintiff. (Jary. Cody & (Jary and Fred'k Ullman, for defendant; BLODGETT, J. The facts in this case are the same as in the preceding case; and, the only, defense set up is the inpr!'ase of risk by the stoppage ()fmanufacturing, I !lave ;tlready passed upon this defense, and the finding will therefore 'be for,the plaintiff '
WESTERN LAND & CATTLE Co.v. HALL. (Oircuz't Oourt, 1.
w: D. Missouri.
January 7.1888,)
TROVER AND CoNVERSION-RETURN OF GOODS CONvERTED-EFFEcT TO BAR ACTION.
The subsequent recovery or, return of property wrongfully taken does not extinguish the right of action fO,r the original wrongful taking; it only goes to the mitigation of whatever damages might otherwise be recovered, and demurrer on that ground will not lie. It was shown that between the time of the wrongful taking of certain cattle and their return, they had depreciated in value in the sum of $3,000; and further that plaintiff was compelled to pay bills, being necessary expenses in recovering the same, $2,500. Held, both these items were proper elements in the measure of plalDtiff's damages.
2.
BAME-DAMAGES-DEPRECIATION IN VALUE-EXPENSES OF RECOVERY.
At Law. Action in trover. This was an aC,tion in trover pyplaintiff, the Western Land & Cattle Company, against Simeon F. Hall, for the conversion of certain cattle. The declaration averred in substance that plaintiff was the owner of a herd of cattle valued at $15,000, and that, on or about December 27, 1884, the defendant wrongfully took and carried away 300 head thereof, with intent to convert the same to his own use. There was no prayer for the recovery of the market value of the property ,but the declaration stated that plaintiff, in recovering and attempting to recover the cattle, was compelled to pay freight, feeding, and other charges thereon to the amount of$2,OOO; that it had been compelled to pay traveling and other of its officers in the sum of 8500; that it had been compelled
