Pratt v. Hampe ( 1901 )

Sherwin J.

1. A patch of sweet potatoes was levied' on under the writ sued out by the defendants. As to the actual damages arising from this levy, the court instructed the jury as follows: “The measure of his damage, if any, would be the difference'in the market value of such crop, estimated as of the date of such levy and the date of the release thereof. And in making such estimate you may take into consideration the evidence as 'x" * * to the market value thereof during the time that would necessarily elapse after their release from such levy and when they could be put on the market.” The potatoes levied on herein were in the ground and not fully matured at the time of'the levy. The levy was released on the nineteenth of September immediately following and the potatoes were not in fact dug until a month after the release. Conceding that the levy was in force so that plaintiffs could not dig or market the crop during its existence, it is evident that their measure of damages would be the difference in the value of the crop in the ground at the time of the levy and its value at the time the levy was released. The latter part of the language used by the court in the instruction quoted left for the jury’s consideration the price during’the time subsequent to the release necessary to dig and put the crop on the market. This was error. The instruction asked by plaintiffs on this point stated the .correct, rule as it was partially announced by the court, and should have been given without the broadening language used by the court in its own instruction.

2 One of the plaintiffs testified in chief as to planting the potatoes in question, and as to his care of them, but on cross-examination the court would not permit him to answer whether he replanted any of them. It was error to exclude this testimony, as it had a direct bearing on the condition and value of the crop at the time of the levy and release.

3 The witnesses Hoopes and Vail were shown to be expert sweet-potato growers. The defendants attempted to show by them the proper planting time, the necessary cultivation, the length of time necessary for growth fit for market and the relative value of a crop on the twenty-sixth of August and on the nineteenth of September of the year in question. The court would not receive this testimony, and in this ruling there was error. The evidence was competent and material.

4 The defendants also offered to show by their attorney that after consultation with them, and before the attachment suit was brought, he had informed the plaintiffs of defendants’ claim as to when the rent was due, and, further, that after the attachment was levied he had offered to give the plaintiffs permission to dig the potatoes when mature. It was prejudicial error to exclude this testimony. Several other errors are assigned and argued, but, as the questions are not likely to arise on a retrial of fhe case, we do not specifically notice them. For the errors pointed out the judgment is reversed. '