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54 Mass. 267

Fowler v. Gilman

Massachusetts Supreme Judicial Court

Decided October 15, 1847

Massachusetts Supreme Judicial Court · decided 1847-10-15

Trover for a wagon. At the trial in the court of common pleas, before Washburn, J. there was evidence tending to show that one Orfut, under whom the defendant claimed title to the wagon, bargained the same to Henry Fowler, under whom the plaintiff claimed it, the bargain being that the wagon should be said Henry’s upon his paying a certain price ; that .Orfut sold his interest in the wagon to the defendant, who had knowledge of the aforesaid bargain, and that said Henry sold…

Decided 1847-10-15

Shaw, C. J.

¶1It appears to us that the jury should have been instructed to deduct the fourteen dollars from the value of the wagon, in case of a verdict for the plaintiff. No doubt the true general rale of damages, in trover, is the value of the goods at the time of conversion, with interest. Kennedy v. Whitwell, 4 Pick. 466. This rule applies where the plaintiff is the general owner, or is answerable over to others. But where the plaintiff admits that the defendant has a lien on the property, to a certain amount, that amount may be deducted by the jury, in assessing damages. Green v. Farmer, 4 Bur. 2214, 2223. Chamberlin v. Shaw, 18 Pick. 283, Dresser Manuf. Co. v. Waterston, 3 Met. 9.

¶2It is to be taken, in this case, and the plaintiff, by his tender, has admitted, that the defendant b ">d the same lien on the *269wagon which Orfut had when he sold his interest therein to the defendant, namely, a lien for the unpaid balance of the price which Henry Fowler had agreed to pay for the wagon, before it should become his property. The amount of that lien is agreed to have been fourteen dollars.

¶3By consent of parties, the verdict may be amended by deducting fourteen dollars therefrom, and judgment be rendered on the verdict so amended. Otherwise, the verdict will be set aside, and a new trial had in the court of common pleas.

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