Opinion of the Court. duty of the court was to set aside the verdict as one not fit to be the basis of a judgment. Undoubtedly, if such had been the view which the court entertained of the motives or conduct of the jury, it would have been in accordance with safe practice to set aside the verdict and submit the case to another jury. That was the course pursued in Stafford v. Pawtucket Haircloth Co., 2 Cliff. 82. In that case, Mr. Justice Clifford, after observing that the damages were greatly excessive and without support in evidence, said: "Such errors may in many cases and under most circumstances be obviated by remitting the amount of the excess; but where the circumstances clearly indicate that the jury were influenced by prejudice or by a reckless disregard of the instructions of the court, that remedy cannot be allowed. Where such motives or influences appear to have operated, the verdict must be rejected, because the effect is to cast suspicion upon the conduct of the jury and their entire finding." This court is not, however, authorized to assume, from the mere fact that $22,833.33 was remitted, that the court below believed that the jury were governed by prejudice, or wilfully disregarded the evidence. On the contrary, it may be inferred that the amount for which the plaintiff was entitled to a verdict was ascertained by the court, after a calculation based upon the prices of cattle as given by numerous witnesses; or that the court became satisfied that the preponderance of evidence as to the ownership of some of the cattle was against the plaintiff; or, as to other cattle, that they were not traced to the possession of the defendant. But, independently of this view, and however it was ascertained by the court that the verdict was too large by the above sum, the granting or refusing a new trial in a Circuit Court of the United States is not subject to review by this court. Parsons v. Bedford, 3 Pet. 433, 447; Insurance Co. v. Folsom, 18 Wall. 237, 248; Railroad Co. v. Fraloff, 100 U. S. 24, 31. Equally beyond our authority to review, upon a writ of error sued out by a party against whom a verdict is rendered, is an order overruling a motion for a new trial, after the plaintiff, with leave of the court, has remitted a part of the verdict. Whether the ver Opinion of the Court. dict should be entirely set aside upon the ground that it was excessive, or was the result of prejudice, or of a reckless disregard of the evidence or of the instructions of the court, or whether the verdict should stand after being reduced to such amount as would relieve it of the imputation of being excessive, are questions addressed to the discretion of the court, and cannot be reviewed at the instance of the party in whose favor the reduction was made. Under what circumstances, if any, a party who is compelled to remit a part of the verdict, in order to prevent a new trial, can complain before this court, we need not decide in the present case. If the Circuit Court had entered judgment for the whole amount of the verdict below, the defendant could have made no question in this court as to its being excessive. We could only, in that case, have considered matters of law arising upon the face of the record. And we can do no more when the defendant brings to us a record, showing that the court below has, in the exercise of its discretion, compelled the opposite side, as a condition of its overruling a motion for a new trial, to remit a part of the verdict. 2. In support of the plaintiff's claim to have purchased the Slagle-Jordan herd of cattle, and his right to bring suit for their conversion, the following agreement was proven and read in evidence: "SHEEP CREEK, WYO. TER., Oct. 11, 1880. "Memorandum of agreement made and entered into this date by and between C. Slagle and John Jordan of Hepner, Umatilla County, Oregon, and J. J. Mann of Albany County, Wyo. Ter. "Party of the first part has this day sold the following neat cattle to the said party of the second part in consideration of one dollar, the receipt of which is hereby acknowledged, two thousand head (2000) more or less, classed as follows, to wit[here follows classification of steers, cows and heifers, according to ages and price per head, and also description of the brands on the different lots constituting the herd]-title guaranteed. Opinion of the Court. "Party of the second part agrees to pay for them as follows, to wit: To ship the three and four year old feeders to Council Bluffs or to Omaha, and in the name of Jordan and Slagle, to the number of six hundred (600) head. If there is not that number of threes and fours, then to ship twos to make up the number six hundred (600), and to guarantee the cattle to net them $26.00, $24 for all, respectively, up to the full number of threes and fours, and the excess to be reckoned at $18 per head if the threes and fours should not reach six hundred (600). Also to pay $2000 before cattle are shipped cash, and the loss on the steers so shipped so soon if any as the steers are sold and money paid to them, Slagle and Jordan, within two days after reaching market. If the steers should net more than the above prices, then the net profit to be credited to party of second part. The balance of said payment to be in ten (10) months from the fifteenth of October (Oct. 15th), A.D. 1880, with interest at the rate of twelve per cent per annum, seller to retain possession of the balance of the herd until the last payment is made. (Signed) "Witness: Chas. G. Mantz." "C. SLAGLE. The instructions asked by the defendant proceeded upon the ground that this agreement was executory only, and that the right of property remained in the seller, Mann acquiring only the right to buy according to the terms of the agreement. The charge of the court was based upon the theory that the title passed by the agreement to Mann; the seller retaining possession of that part of the herd not shipped to Omaha or Council Bluffs, simply as security for the amount the buyer agreed to pay. We concur in the view taken by the Circuit Court. Any other interpretation would, in effect, declare that title could, in no case, pass to a buyer while possession remains with the seller for any purpose whatever. Slagle and Jordan certainly intended to vest Mann with the title, at the date of the bill of sale in question; for that instrument recites that Opinion of the Court. the owners had, on the day of its execution, "sold" the cattle to him, and that recital is followed by clauses guaranteeing the title, and providing the mode in which the buyer was to make payment. Here are all the elements of an actual sale, as distinguished from an executory agreement. The retention of possession by the sellers until, and as security for, the payment of the price, was not inconsistent with an actual sale by which title passed to the buyer. The agreement in question is unlike that in Harkness v. Russell, 118 U. S. 663, which expressly declared that neither the title, ownership, nor possession should pass from the seller until the note given by the buyer for the stipulated price was paid. 3. The plaintiff asked the following instruction: "If you find that defendant converted any of the cattle belonging to plaintiff, and that among those converted were cows which either had calves with them at the time of the conversion or afterwards and before the commencement of this suit had calves, then you are instructed that the plaintiff is entitled to recover the value of such calves or increase, and you may consider as evidence of the number of such increase the average increase of cattle for the years between the time you may find the company took possession and the institution of this suit." The court below observed: "That is true, substituting for the institution of this suit' the time when the demand was made for the cattle. The plaintiff, if entitled to anything, is entitled to the value of the animals with their increase up to the time of the demand made, not the commencement of the suit, but the making of the demand." The defendant insists that this instruction was erroneous. But, in our judgment, it is correct. The calves of such of the cows as belonged to the plaintiff, and were converted by the defendant, certainly belonged to the former; for, according to the maxim partus sequitur ventrem, the brood of all tame and domestic animals belongs to the owner of the dam or mother. 2 Bl. Com. 390. The defendant's liability as for conversion extended, at least, to such of the calves, the increase of plaintiff's cows, as were in existence at the time of demand and conversion. As it was, not informed of the plaintiff's claim of Opinioù of the Court. ownership until his demand in January, 1884, the conversion must be taken to have occurred when it refused to comply with such demand. The plaintiff, if entitled to recover, was entitled to damages proportioned to the value of the cows and their calves at the time of conversion. The damages could not properly exceed the value of the property at that date, and less than that would not be sufficient compensation. 4. Error is assigned by the defendant in relation to that part of the charge stating that the plaintiff, if entitled to recover, was entitled to interest from the time of demand, at the rate of ten per cent. That is the rate of interest allowed by the statutes of Colorado on the forbearance or loan of money, where there is no agreement between the parties. Gen. Stat. Colorado, 1883, § 1706, p. 559. In Machette v. Wanless, 2 Colorado, 180, which was an action of replevin, in which damages were claimed for the detention of personal property, the court said, that "where the property is domestic animals, valuable for service only, the value of the use of the animal is, of course, the measure of compensation; but where, as in this case, the article is intended for consumption, interest upon the value of it would seem to be the true compensation. If the owner of the grain should ask to obtain the like quantity, he must purchase in the market, at current rates, and he would be deprived of the use of the money thus invested. The best estimate of a loss that can be made is interest upon the amount of money which he would for that purpose be compelled to pay out." See, also, Hanauer v. Bartels, 2 Colorado, 514, 525. The same rule ought to control the ascertainment of damages in actions for simple conversion of domestic animals intended for sale and consumption. The plaintiff receives adequate compensation when he is allowed damages equal to the value of the property at the time of conversion, with interest, at the established legal rate, from that date. He is entitled, as matter of law, to be compensated by the wrong-doer to that extent. Many other questions have been discussed by counsel, but we do not deem it important to refer to them. No substantial error of law appears to have been committed to the prejudice of the defendant, and The judgment is affirmed. |