Burger v. . Cooper

Allen, J.

The only exception in the record presents for review the correctness of the ruling setting aside the finding upon the fifth issue of damages with directions to resubmit the issue to another jury, and in this there was error.

Tbe plaintiff alleges no damages in tbe complaint except for tbe detention of the two mules, wbicb tbe statute (Rev., 795) fixes at interest on tbe value of tbe property at tbe time of tbe seizure, and this has been awarded him in tbe judgment.

He does not allege that be was compelled to incur expense in feeding the horse and mare, and, on the contrary, be shows by bis own evidence that after the defendant refused to rescind the trade and return the mules, be voluntarily took the horse and mare from the stables of the defendant, where be bad placed them, and carried them to bis own borne and kept them, and it also appears from the verdict that there was very little difference in the value of the horse and mare and the mules, indicating that be preferred to keep what be bad, and that be thought their services were worth their feed.

The judgment must therefore be modified by striking out the order directing that the fifth issue be submitted to another jury.

The costs of the Supreme Court will be divided between the plaintiff and defendant, as the appeal might have been dismissed as premature.

Modified and affirmed.