Young Men's Christian Ass'n v. Harmon ( 1895 )

Mr. Justice Harker

delivered the opinion of the Court.

That Brubaker wrongfully sold the boobs of appellee, is not denied. There was no rent due and they could only be held for storage charges, which were agreed upon by appellee and Brubaker at $40.

While endeavoring to settle the matter, appellee told Brubaker that all he wanted was a return of the books, and acting upon that statement, Brubaker recovered back 105 copies, and upon the trial in the Circuit Court tendered them to appellee.

They were not accepted, and the damages recovered included the value of them.

While the facts show that appellee had a clear right of recovery we are of the opinion that the judgment was too large. Under the circumstances, and the understanding between appellee and Brubaker, whereby the latter repurchased the books from parties to whom he had sold them, appellee should have accepted the 105 copies, if, when tendered, they were in as good condition as when taken from the building.

Appellee knew before he began suit that Brubaker, acting upon the faith of his statement that all he wanted was his books, had procured nearly all of those sold, and was honestly endeavoring to procure the rest of them..

Appellee acted upon the theory that he was not obliged to accept any of the books unless the entire 130 copies were restored and tendered. In this he was wrong. Each copy was a separate and distinct piece of property. He was bound to accept such as were tendered in good condition, and was entitled to recover only for such of the property as was not so tendered.

For the reason that the damages recovered were excessive, the judgment will be reversed and. the cause remanded for another trial.