Black r. Camden and Amboy Railroad and Transportation Company.

jury found a verdict in favor of the plaintiff, for $906.22. A new trial was asked for by the defendants, on various exceptions taken during the trial, and to the judge's charge, and on an appeal from an order of the judge denying a motion for a new trial on the facts.

Washington Murray, for the appellants.

Max Goepp, for the respondent.

By the Court, INGRAHAM, P. J. 1. The first exception taken was to the admission of evidence of the weight of a lot of cattle weighed for the plaintiff, which numbered 99, at Union Drove yards. Although at the time the deposition was read there was no evidence to show that it was the same lot of cattle delivered by the plaintiff, there was afterwards evidence in the case sufficient to warrant submitting the evidence to the jury. It is no error to admit testimony irrelevant at the time, if it is afterwards made pertinent by other testimony. But even if it was irrelevant it could not have affected the defendants' interests. The question was not one in which the weight of the cattle was material, and if error was committed it was one which could do no harm to the defendants.

2. An objection was made to the fourth interrogatory, and the answer thereto, as admitting a copy and not the original. The answer is a very simple one, viz: that the original was in a book kept at the scale where the cattle were weighed, which was out of the jurisdiction of the courts and over which the court had no power. The original could not have been annexed to the commission, and the court could not compel its production. In such a case a copy proved to be such is admissible.

3. The next objection is to a question put to a witness, and the fourth objection is to the admission of a part of the answer, on the ground that the question is leading. Whether

Black v. Camden and Amboy Railroad and Transportation Company.

or not a leading question may be put to a witness is a matter of discretion with the judge at the trial, and the allowance of a leading question has ceased to be considered a matter to be reviewed on appeal.

5. The next objection is to the admission of remonstrances to the men who had charge of the cattle that they were improperly stowed. These were made to the employees of the defendants. They were admissible to show that the attention of those in charge was called to the difficulty. What weight was to be attached to it belonged to the jury.

The seventh objection was of the same nature as the third, and not to be reviewed on appeal.

From the seventh to the twelfth objections inclusive, the exception is to showing when the market day was, because the defendants did not contract to deliver for any market day. Irrespective of that objection, the evidence was admissible to show that the defendants were compelled by the injuries to the cattle to keep them on hand. It might have been said that by a few days delay they could recover from the injury, and they could not have been sold before. This proof would have been admissible on the question of damages. The exceptions from the twelfth to the seventeenth inclusive relate to applications to employees for more room for the cattle, and complaints as to the mode of carriage. I have already noticed this objection. There was no error in the admission of these questions. Where a corporation is a party, it can only act by agents and employees; and persons appointed on behalf of the company, to do any particular part of the work, are the proper persons to whom such communications. should be made.

The questions as to damages were not objectionable. The rule was the difference in value between the cattle where placed in the charge of the defendants and their condition. when delivered, so far as caused by injuries on the way. The evidence was admissible. It was for the judge in his

Black v. Canrden and Amboy Railroad and Transportation Company.

charge to tell the jury how far it could be used for that purpose.

In regard to the motion to dismiss the complaint, and the judge's charge, there is no ground for objection as to the submission to the jury of the questions involving the plaintiff's right to recover. The evidence was ample for that purpose. The charge was not objected to, excepting on one point, to be noticed hereafter. The facts were fairly left to the jury where the decision belonged.

An objection was made to the instruction of the judge as to the allowance of interest. The charge was, "If you come to the conclusion that the defendants were liable for some damage, you will add to the amount of damage for which you think them liable, and add for the purpose of indemnifying the plaintiff, interest, from April, 1860, to the present time. That will be the amount of your verdict, if you find for the plaintiff at all.”

It has for a long time been a controverted question whether in actions of tort interest could be given as a matter of right, in addition to the damages. In Dana v. Fiedler, (2 Kern. 42,) it was held that in an action for damages on a breach of a contract, the plaintiff was entitled to interest on the damages awarded for the breach, from that time until the trial. So in actions of trespass for taking the plaintiff's property. (1 John. 136. 1 Baldwin, 138.) And in trover, (4 Cowen, 58; 7 Wend. 354.) the plaintiff has been considered as entitled to interest on the value of the property taken or converted, from the time of conversion, but this rule has not, as far as I am aware of, been applied to other classes of torts, where there was no property taken or converted, and where the question was one of damages purely, unliquidated and to be assessed by a jury. The rule in such cases has been to leave the question to the jury not only as to the amount of damages, but as to the question of interest. This rule was recognized in Walrath v. Redfield, (18 N. Y. Rep. 462.) Selden, J. says: "The jury were not instructed to allow

Aikin v. Davis.

interest, but its allowance was submitted to their discretion. There was no error in this. In general, in actions ex delicto, it is in the discretion of the jury whether to allow interest by way of damages or not." This was so held in an action against a carrier. (Richmond v. Bronson, 5 Denio, 55. Lakeman, v. Grinnell, 5 Bosw. 625.)

I think this is the true rule, and where a jury are instructed in a case of negligence to award the damages the plaintiff has sustained, the court may leave to them to say whether on such damages the plaintiff is entitled to interest; but it is errroneous to instruct them as matter of law, that the plaintiff is entitled to recover interest on the damages.

For this reason I think a new trial should be awarded.

New trial granted.

[NEW YORK GENERAL TERM, September, 19, 1865. Ingraham, Leonard and Sutherland, Justices.]

AIKIN and others vs. DAVIS.

The defendant, in September, 1862, wrote to one of the plaintiffs, at New York, saying that he had a lot of hops to sell, and asking what he could get for them. The plaintiffs answered, stating the market price, and asking information as to the quantity, &c. The defendant replied, October 4, 1862: "If you can give me 12 cents per lb. at my place [North Chili] I will send them to you, after receiving a line from you. I have about 12,000 lbs." The plaintiffs answered by telegraph, October 11: "Will take your hops at offer. Ship them immediately. We write." On the 14th of October the defendant wrote, saying he was busy baling the hops; that he would ship on Monday of the next week. Perhaps he might on Saturday, but doubtful-Monday sure. If that would answer, "write immediately." On the 17th of October the plaintiffs wrote: "It is not too late. Please ship on Monday or just as soon as you can get them ready." On the 24th of October the defendant wrote that he found he could not ship the hops in time to get the returns before he wanted the money, and that he could sell them at home, &c. The plaintiff's proved that they were ready and willing to pay for the hops in the city of

Aikin v. Davis.

New York, and that the defendant admitted, before the trial, that he had sold them.

Held, 1. That if the letter of October 4th and the telegraphic answer of the 11th, amounted to a contract, the effect of the subsequent letters was to alter the proposed time of delivery to Monday, and to modify, to that extent, the defendant's offer, but they in no way affected the other terms proposed. 2. That conceding that the letters, taken together, made out a contract for the sale of the hops, the contract was, that the defendant would sell the plaintiffs about 12,000 pounds of hops at twelve and a half cents per pound, payable at North Chili, and would ship them on the succeeding Monday, or as soon as they could be got ready.

3. That in order to entitle the plaintiffs to a delivery of the hops, it was necessary for them to make a tender of the purchase money.

4. That the delivery and payment were to be simultaneous. That nothing in the contract called for a shipment to New York, before payment, or allowed a payment any where else than at the place designated in the defendant's letter.

5. That until payment was tendered, the plaintiffs had not performed the contract, on their part, and were not in a condition to require performance from the defendant.

6. That an offer, by letter, on the 24th of October, that if the defendant would ship the hops and send the plaintiffs the railroad receipt, they would send him a certified check, was not a valid tender; being an offer to make payment in a mode different from the terms of the original offer, and made after the time of delivery fixed by the letters.

7. That there was nothing, in the admission of the defendant that he had sold the hops, to relieve the plaintiff's from the obligation to tender payment; it not appearing when the hops were sold.

APPEAL from a judgment entered on the report of a

referee. The plaintiffs sued the defendant to recover from him damages for the non-delivery of a quantity of hops, on an alleged contract for the sale of them. The defendant, in September, 1862, wrote to one of the plaintiffs, that he had a lot of hops to sell, and asking what he could get for them. The plaintiffs answered, stating the market price, and asking information as to the quantity, &c. This was answered by the defendant, who wrote as follows: "If you can give me 12 cents per lb. at my place, I will send them to you after receiving a line from you. I have about 12,000 lbs." The date of this letter was 4th of October, 1862. The plaintiffs answer by telegraph: "Will take your hops at