Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 2) online

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property, in proportion to its value as shown by the evidence.^^
In the case of a horse wrongfully distrained for taxes, where it
was sold and bid off by the plaintiffs, his measure of damages
is the amount of his bid.^^ So the owner may recover the
amount of a reasonable reward paid to get the property back.^^

§ 495. Value, how determined.

The value of anything is not limited to the immediate cash
value, that is, the price it would bring cash down.^^ Nor to its
value for a particular use, if it has a more valuable use. Logs
of cedar fit for paving are not to be valued as firewood.^"

Defendant sold plaintiff's slaves. Held that he was ac-
countable for the proceeds, in spite of the fact that subsequent
emancipation would have made them valueless if he had re-
tained them; but for slaves which were emancipated but which
he did not sell he was not liable.^^

*' Dodson V. Cooper, 37 Kan. 346, a market for standing fences, was the

15 Pac. 200. actual value at the time and place.

» Blewett V. Miller, 131 Cal. 149, 63 Harrison v. McGehee (Tex. Civ. App.),

Pac. 157. 139 S. W. 013.

" Hurlburt v. Green, 41 Vt. 490. ^ LaChappollc v. Warehouse & B.

8» Greenfield Hank v. Leavitt, 17 S. Co., 95 Wis. 518, 70 N. W. 589;

Pick. ( 1; sec Pierce v. Henja- ante, §252.
min, 14 Pick. 3.56, 25 Am. Dec. 306. »' Craufurd v. Smith, 93 Va. 623, 23

»» KaHFur r. Walla, 49 Neb. 288, 68 S. E. 235, 25 S. E. 657. The liability

N. W. 476. of a person to pay the value of slaves

So where a fence was converted, <he wrongfully appropriated is not affected

mea.sure of dain.ngcs, in I lie ahsciice of by the fact of tiie subse(iuent ;ibolition


The value recovered is usually the market value, not the
cost of production,^- nor the consideration paid.^^ Where
goods were wrongfully sold on execution, it was held that the
price obtained at the auction sale was competent evidence
of their value.^^ In an early case,^^ Abbott, C. J., said that
the plaintiff was not bound by the sum at which goods were
sold by the defendant at auction, "but where the plaintiff
is an assignee, who must have sold the goods if they had come
to his hands before any sale by the sheriff, it often happens
that a jury considers the sum at which the goods were actually
sold at auction, as a fair measure of damages." Where the
goods are contained in a number of packages the value is not
what could be obtained on a sale of the entire number of pack-
ages, but the aggregate market value of the separate packages
at the time.^^ In the case of household furniture, the original
cost having been proved, deterioration, through wear and tear,
etc., may be shown.^^

§ 496. Value, where to be estimated.

As a general rule, the value of the property is to be taken
at the place of conversion. ^^ So for the conversion of a piano
in Alaska the measure of damages is the value of the piano
there.^^ And where plaintiff shipped lilies from Bermuda by
express to customers in New York, and the goods were de-
livered to defendant, a florist, the measure of damages was
held to be the value of the flowers at the time and place of
conversion; that is, in New York just before Easter. ^'^^ It
seems to have been held by the New York Court of Appeals,
that the value of foreign goods in an action of trover should
be ascertained by the custom-house valuation of them in this

of slavery. Calhoun v. Burnett, 40 ^ Miller v. Jannett, 63 Tex. 82.

Miss. 599. " Hannan v. Connett, 10 Colo. App.

'2 Gunn V. Burghart, 47 N. Y. Super. 171, 50 Pac. 214.

Ct. 370; ace, Sigel-Campion Live Stock ^* California: Hamer v. Hathaway,

Com. Co. V. Holly, 44 Colo. 580, 101 33 Cal. 117.

Pac. 68. Massachusetts: United S. M. Co. v.

^3 Kingsbury v. Smith, 13 N. H. 109. Holt, 185 Mass. 97, 69 N. E. 1056.

" Heinmullcr v. Abbott, 34 N. Y. '' Lines v. Alaska Commercial Co.,

Super. Ct. 228. 29 Wash. 133, 69 Pac. 642.

'^ Whitehouse v. Atkinson, 3 C. & '■"^ Downing v. Outerbridge, 79 Fed.

P. 344. 931, 25 C. C. A. 244.


country, if made nearly at the time of the conversion. ^"^ But
where the plaintiffs, lumber dealers doing business at Troy,
bought lumber to be sold in their lumber-yard there, in an
action for its conversion, it was held error to charge that if
the lumber was to be taken to Troy to be sold there, the plain-
tiffs were entitled to recover the value at Troy, less the ex-
penses of transportation. ^°-

A distinction must be noticed between the value of a thing
and the evidence of its value. When there is a market for the
chattel at the place where its value is to be shown, the market
value establishes its actual value; but where there is no market
at the place, its value must be established by other evidence,
which is ordinarily its value in the nearest market. ^°^ So
where logs are converted in a river the measure of damages
is the value of the logs at the nearest market less the cost of
moving the logs there; ^^^ and so in an action for the conversion
of plows of a peculiar kind made for sale in Nebraska, the
market value of the plows in Nebraska may be shown, with
the expense of getting them there and selling them, to indicate
their value in Wisconsin where there was no sale for them.^°^

§ 497. Value, when to be estimated.

Upon general principles, the value of the property at the
time of the conversion should be the measure of damages,
and that is the rule generally adopted. ^"^^ If the conversion is
established by a demand and refusal, the value should be esti-
mated at the time of the refusal. ^°^

"" Caffe V. Bertrand, 1 How. App. '" Hodson v. Goodale, 22 Ore. 68,

224. 29 Pac. 70.

•o" Spicer v. Waters, 65 Barb. 227. '"^ Lathers v. Wyman, 76 Wis. 616,

'" Ante, §§ 244, 246, 247. 45 N. W. 669.

Iowa: Gensburg i;. Marshall Field & '*" United States: Sedgwick v. Place,

Co., 104 la. 599, 74 N. W. 3. 12 Blatch. 163.

Massachusetts: Selkirk v. Cobb, 13 Louisiana: Arrowsmith v. Gordon,

Gray, 313. 3 La. Ann. 105.

New York: TilTany v. Lord, 65 N. Y. Michigan: Greeley v. Stilson, 27

310; FleiHchman v. Samuel, 18 App. Mich. 153.

Div. 97, 45 N. Y. Supp. 404. Texas: Norwood v. Cobb, 37 Tex. 141.

North Carolina: Boylaton Ins. Co. England: France v. Gaudet, L. R. 6

V. DavLs, 70 N. C. 485. Q. B. 199; Falk v. Fletcher, 18 C. B.

Tennessee: Fort v. Saunders, 5 Ilcisk. (N. S.) 403.

487. 'OT United States: Dows v. National


Where the defendants, holding certain bonds of the plain-
tiff's as security for a loan void for usury, sold them first at
auction where they purchased them themselves, and subse-
quently resold them at private sale, the private sale was held
to be the conversion, and the value at that time was held to
furnish the measure of damages. ^°^ And where property at-
tached on mesne process remains in the plaintiff's possession
until judgment and execution in the attachment suit, the
measure of his damages is the value of the property at the
time it was taken on execution, with interest. ^°^ Where bonds
of the plaintiff were stolen from the defendant by its negli-
gence, the measure of damages is the value of the bonds at the
time of the theft, not at the time of a demand by the plain-
tiff. ^^° So, where an officer had wrongfully taken from the
plaintiff a promissory note, the maker of which was then
solvent, but who became insolvent before the officer offered
to return it, the measure of damages was held to be the value
of the note at the time of the conversion, and interest. ^^^
Where property was attached by plaintiff, a deputy sheriff,
and held under attachment, an outstanding leasehold interest
could not be seized; but the lease came to an end during the
attachment, and before the conversion. Plaintiff was held
entitled to recover the value of the property when converted
by the assignee of the owner taking it out of his hands. ^^-
In an action against a director for wrongfully taking a gift
of shares from the company, the measure of damages is the

Exchange Bank, 91 U. S. 618, 23 L. ed. ^°« Tyng v. Commercial Warehouse

214. Co., 58 N. Y. 308.

Illinois: Northern Transportation i<*' Henshaw v. Bank of Bellows Falls,

Co. t;. Sellick, 52 111. 249. 10 Gray (Mass.), 568.

Massachusetts: Eastern R, R. v. ^^° Third National Bank v. Boyd, 44

Benedict, 10 Gray, 212, 66 Am. Dec. Md. 47, 22 Am. Rep. 35.

384. "1 King v. Ham, 6 All. (Mass.) 298.

Minnesota: DoUifT v. Robbins, 83 In the case of goods on hand for sale,

Minn. 498, 86 N. W. 772, 85 Am. St. this value may include the expected

Rep. 466. profit of the sale. Ebenreitter v. Dahl-

Missouri: Carter v. Feland, 17 Mo. man, 41 N. Y. Supp. 559, 18 Misc. 351,

383. 75 N. Y. St. Rep. 948; Rheinfeldt v.

Tennessee: Fort v. Saunders, 5 Heisk. Dahlman, 43 N. Y. Supp. 281, 19 Misc.

487. 9.

Utah: Walley v. Deseret Nat. Bank, i'^ PoqJ y. Baker, 58 Vt. 293, 2 Atl.

14 Utah, 305. 47 Pac. 147. 164.


actual value of the shares at the time of the gift being accepted
by the director."^ For the conversion of stock in which plain-
tiff owns a remainder after a life interest, his measure of dam-
ages is the value of the stock at the death of the life tenant. ^^*
Evidence may, of course, be competent as bearing on the value
at the time of conversion though it relates to facts of a dif-
ferent time. Thus in an action for the conversion of a judg-
ment, though the judgment debtors were insolvent at the time
of conversion, they afterwards became solvent. Evidence of
this showed what the judgment was worth to the plaintiff. ^^^
The general principle may be modified by the circumstances
considered in the next section.

§ 497a. Result of following the property.

In Ingram v. Rankin, ^^^ Taylor, J., said that damages higher
than the value at the time of conversion might be recovered
in two cases: first, if it appears that the defendant, in case of
a wrongful taking or conversion, has sold the chattels, the
plaintiff may, at his election, recover as his damages the
amount for which the same were sold, with interest from the
time of the sale to the day of trial; and second, if it appears
that the chattels wrongfully taken or converted are still in
the possession of the defendant at the time of trial, the plain-
tiff may, at his election, recover the present value of the same
at the place where the same were taken or converted, in the
form they were in when so taken or converted. It would seem,
however, that even in these cases the principle of damages
in the action of trover should not be changed. The result in-
dicated is obtained by invoking the principle of following the
property in the hands of the wrongdoer. If the property
remains in the possession of the wrongdoer, the owner may
obtain it in an action of replevin, or he may demand it, and
in case of refusal bring an action of trover founded upon the
demand and refusal and recover the value of the propertj'^ at
the time and place of the demand. If the wrongdoer has dis-
posed of the property the owner has the option of waiving the

"' Montgomerie's Brewery Co. v. "^ Rivinus «. Langford, 75 Fed. 959,

IJlyUi, 20 Vict. L. R. 612. 21 C. C. A. 581, 33 L. R. A. 250.

"< CauIkiriH v. Giuslight Co., 85 Tcnn. »'« 47 Wis. 400, 420, 2 N. W. 755, 32

683, 4 S. W. 287, 4 Am. St. Rep. 780. Am. Rep. 702.


tort and recovering the proceeds of the property in an action
for money had and received. In Texas it seems that this
doctrine will be applied, at least in case of conversion by a
fiduciary, even though the property may not remain in the
hands of the defendant. Thus it has been held in an action
for the conversion of money that plaintiff is not limited to the
principal sum and interest, but may recover the total amount
of money gained through the conversion."^ And where an
assignee for creditors wrongfully appropriated property be-
longing to the estate, the creditors were allowed to recover
the value of the property at the time of trial. "^ The procedure
in such a case is in substance equitable.

§ 497b. Recovery by owner of a limited interest.

Where an action for the conversion of a chattel is brought
by one having a limited interest in it, he should recover no
more than the value of his interest, unless he was in possession
at the time of conversion and the defendant was a stranger
to the title, in which case he should recover the entire value
of the chattel. "9

This principle is illustrated by cases where the goods of a part-
nership are converted. Each partner is in possession of such
goods, and may recover the entire value against a stranger. So
upon a wrongful sale of partnership goods on writ against one
partner, in a suit by the other partner, the entire value of the
goods converted can be recovered. ^-° But against the other
partner or one entitled to his rights, a partner can recover only
half, that being the amount of his legal interest in the property.
So in an action by the assignee of one partner for the conver-
sion of the firm property by a sale of it by the other partner,
it was held that the measure of damages was the value of
plaintiff's undivided interest, without regard to insolvency br
the state of the partnership accounts. ^-^ But where in an action
against a partner, partnership property was attached, and the

'" Black V. Black, 4 Tex. Ct. Rep. >2o Summers v. Heard, 66 Ark. 550,

178, 67 S. W. 928. 562, 50 S. W. 78.

"* McCord V. Nabours, 101 Tex. ^-^ Carrie v. Cloverdale Banking &

494, 109 S. W. 913. C. Co., 90 Cal. 84, 27 Pac. 58. Cf. Doll

"' Ante, §§ 76, 78. v. Hennessy Mercantile Cc, 33 Mont.

80, 81 Pac. 625.


partner being insolvent, the attaching officer delivered the
property to his assignee, it was held that the solvent partner
could recover the full value of the property, without reduction
on account of delivery to the assignee, since the solvent partner
was entitled to the property to close up the partnership. ^-^

Receiptors are chargeable with the valuation adopted, and
are responsible if they let any portion of the goods go back
into the possession of the debtor. Goods attached were given
to a receiptor valued at $150, and a small part of the goods
were taken by a paramount title. It was held that he was not
responsible for this, but that the actual value of these goods
would be deducted from the value in the receipt and he would
be held for the balance, although this was greatly in excess of
the actual value. ^-^

Plaintiff, having by contract an interest in railway ties to
the amount of ten cents each, in an action for conversion is
entitled to the amount reserved to him under the contract,
with interest, and not the value of the ties.^-^ By an agree-
ment for the curing of prunes, plaintiff was to have two per
cent of the value. The owner converted. It was held that
the measure of plaintiff's recovery was the value of his in-
terest in the prunes, that is, two per cent.^-^

The principle is also illustrated by actions for the conver-
sion of garnished or trusteed property. Defendants attaching
and converting garnished property, with knowledge of the
garnishment proceedings, are liable for the amount which
plaintiffs would have realized. ^^^ In the case of conversion of
trusteed property taken from the possession of the trustee
by the defendant, he is liable in damages to the amount of
the judgment in the trustee suit not exceeding the value of
the property. ^^^

Some of the commoner classes of cases illustrating this gen-
eral principle will be considered in the following sections.

'" Russoll V. Cole, 1G7 Mass. G, 44 '" California Cured Fruit Assoc, v.

N. E. 1057, 57 Am. St. Rep. 432. Ainsworth, 134 Cal. 461, 66 Pac.

'" Hcaley v. Hutchinson, 00 N. II. 580.

316, 20 Atl. 332; see Cross v. Brown, '=• Focke v. Blum, 82 Tox. 440, 17

41 N. U. 283. S. W. 770.

'=« Harvey v. Morse, 69 N. H. 475, '" Oeno v. Thomas, 64 Vt. 358, 24

4.5 Atl. 230. AU 110.

§§ 497c, 497d action by pledgee 969

§ 497c. Conversion of pledged property : action by pledgor.

In an action by the pledgor against the pledgee for conver-
sion of the pledged goods the measure of damages is the value
of the property, minus the debt. ^-'* So where a pledgee converts
a bond and mortgage held as security, the measure of recovery
is the actual, not the face value of the security, minus the
debt; ^-^ and the same is true where a pledged note is con-
verted.^^" Where a pledgee of stock, having an option to buy
at a specified price, converted the stock, it was held that if
the stock was worth more than the option the plaintiff could
not recover any more, because that was the extent of the dam-
age. If on the other hand it was worth less, the plaintiff might
consider the conversion an election to purchase the stock and
hold the defendant for the agreed price. The option price
was therefore held to be the measure of damages.^"

If the debt has been paid, the pledgor may recover the
entire value of the property converted. So where a mortgagee
deposited a chattel mortgage in pledge for a debt of his own,
and the pledgee collected his own debt out of the goods and
then gave up the mortgage to the mortgagor, who destroyed
it, the measure of damages for this conversion was held to be
the value of the mortgage at the time of conversion. ^^^ Tender
of payment will have the same effect as actual payment. So
where a pledgee sold the property after a tender to him of the
whole amount of the debt, the tender discharged the lien, and
the pledgor could recover the full value of the property. ^^^

§ 497d. Action by pledgee.

Where the pledgor converts the pledged goods, the pledgee
cannot recover the full value of the goods, but is limited to
the amount of the debt secured by the pledge. ^^^ If a stranger
converts the goods, the pledgee recovers the full value, being

128 First Nat. Bank v. Boyce, 78 Ky. "2 Nesbitt v. Moore, 39 S. C. 351,

42, 39 Am. Rep. 198; ante, § 78. 17 S. E. 798.

'29 Barber v. Hathaway, 47 App. '" Hyams v. Bamberger, 10 Utah,

Div. 165, 62 N. Y. Supp. 329. 3, 36 Pac. 202.

"" Hallack Lumber & Manuf. Co. "< Bradley v. Burkett, 82 Ga. 255,

I'. Gray, 19 Colo. 149, 34 Pac. 1000. 11 S. E. 492; Bell v. G. Ober & Sons

•^' Upham V. Barbour, 65 Minn. 364, Co^ 96 Ga. 214, 23 S. E. 7.
68 N. W. 42.


answerable to the pledgor for the balance over the amount
of the debt; ^^^ but where the act, though wrongful as against
him, is good so far as the pledgor is concerned, the measure of
damages is the same as that in an action against the pledgor,
that is, the amount of the debt. So in an action by the pledgee
to recover from a sheriff for the seizure of goods under process
sued out by creditors of the pledgor, the amount recovered is
the value of the interest of the pledgee in the goods. ^^^ And
so in a suit against a company for calling in and cancelling
shares without notice to him, the pledgee recovers only the
amount due from the pledgor, with interest. ^^^

§ 497e. Conversion of mortgaged property; action by mort-

In an action by the mortgagor against the mortgagee for
a conversion of the mortgaged propertj^, the measure of dam-
ages is the value of the goods over and above the amount
required to satisfy the mortgage. ^^^ So in the case of mort-
gaged goods wrongfully taken and sold by the mortgagee,
together with other goods, the mortgagor recovers the value
of the mortgaged goods less the amount of the mortgage, and
the full value of the goods not mortgaged. ^^^

In an action by a mortgagor in possession against a stranger
the plaintiff recovers the entire value of the property. ''^° If
however after the conversion the mortgagee takes possession,
this is an application of the property to the use of the mort-
gagor, and the recovery must be for the value as reduced
by it'''

'" Cramer v. Marsh, 5 Col. App. Iowa: Howery v. Hoover, 97 Iowa,

302, 38 Pac. 612; ante, § 76. 581, 66 N. W. 772.

"« Cramer f. Marsh, 5 Col. App. 302, Kansas: Burton v. Randall, 4 Kan.

38 Pac. 612; ante, § 78. But see Ein- App. 593, 46 Pac. 326.

Btoin V. Dunn, 171 N. Y. 648, 63 N. K. Ante, § 82.

1110, 32 Civ. Proc. 04, 01 App. Div. "'Kearney v. Clutton, 101 Mich.

195, 70 N. Y. Supp. 520. 106, 59 N. W. 419, 45 Am. St. Rep.

'" Brown v. Union S. & L. Assoc, 394.

28 Wash. 657, 69 Pac. 383. '« Vandiver v. O'Gorman, 57 Minn.

"« United States: Kohn v. Dravi.s, 94 64, 58 N. W. 831.

Fed. 288, 36 C. C. A. 253. '<• Dahill v. Booker, 140 Mass. 308, Jones v. Florn, 51 Ark. 19, 5 N. E. 496, 54 Am. Rep. 465.
9S. W..309, U Am. Sf. Rfj). 17.


§ 497f. Action by mortgagee.

The mortgagee of chattels is ordinarily out of possession,
and his interest in the goods is merely as security for the debt.
Even against a stranger, therefore, his recover}^ is limited to
the amount of the mortgage debt.^^^ Whether he is in pos-
session of the goods or not, if his action is against the mort-
gagor or one claiming under him his recovery, while of course
it cannot exceed the value of the goods, is limited to the amount
due on the mortgage debt. So in an action against a pur-
chaser from the mortgagor the mortgagee can recover no more
than the amount of his debt; ^^^ and in an action against a
sheriff attaching at the suit of a creditor he is also limited to
the amount of the debt.^'*'* If, however, the illegal attachment
involved a denial of the mortgagee's right in the goods, the
mortgagee is allowed in some jurisdictions to recover the full
value of the chattel. ^'^^

The mortgagee's recovery of the amount due on the mort-
gage is reduced by the value of any portion of the mortgaged
goods which were not converted, ^^^ or by any portion of the goods
or their proceeds which was returned to him.^^'' Where part
of the goods were returned to the mortgagee, who at once
sold them on foreclosure, and bid them in, and afterwards
resold them for a much larger amount than he had bid, the
recovery for the conversion is to be reduced by the amount
which he bid at the sale, and not by the amount which he

"2 Roberts v. Kain, 6 Rob. (N. Y.) St. Rep. 278, where it is said that the

354 (action by assignee of mortga- sheriff is a stranger, and except so far

gee). as the proceeds of the attachment have

"' Alabama: Seibold v. Rogers, 101 actually been turned over to the mort-

Ala. 438, 18 So. 312. gagor or his benefit the mortgagee

Massachusetts: West v. White, 165 recovers the full value of the prop-
Mass. 258, 43 N. E. 103. erty.

1** California: Irwin v. McDowell, '^^ Connecticut: Aldrich v. Higgins,

91 Cal. 119, 27 Pac. 601. 77 Conn. 370, 59 Atl. 498.

Michigan: Ganong v. Green, 71 Massachusetts: Hanly v. Davis, 166

Mich. 1, 38 N. W. 661. Mass. 1, 43 N. E. 523. Cf. Rund v.

Montana: Rocheleau v. Boyle, 12 Blatt, 170 Mass. 469, 49 N. E. 642.

Mont. 590, 31 Pac. 533. i« Ganong v. Green, 71 Mich. 1,

Nebraska: Watson v. Cobum, 35 38 N. W. 661.

Neb. 492, 53 N. W. 477. ^" Watson v. Cobum, 35 Neb. 492,

Contra, Kansas: Jones v. Kellogg, 53 N. W. 477.
51 Kan. 263, 284, 33 Pac. 997, 37 Am.


afterwards realized at private sale.^^^ But since he is entitled
to the entire security, his recoverv' is not to be reduced either
by the value of other property held as security, or by the fact
that the mortgagor is solvent, ^''^ nor by the fact that the pro-
ceeds were applied to other debts of the mortgagor. ^^°

These rules may be affected by the existence of a junior
mortgage. "WTiere there is a mortgage senior to plaintiff's,
the amount of his recovery cannot exceed the value of the
property, less the amount of the senior mortgage. ^^^ Where
the first mortgagee sues the second mortgagee for conversion,
the extent of the recovery is the amount of plaintiff's claim. ^"
And where the first mortgagee converts, and is sued by the
second mortgagee, the measure of damages is the value of the
second mortgagee's interest in the property. ^^^

§ 497g. Conversion of property sold conditionally.

\\Tiere the title to goods sold has been reserved and the
property partly paid for, the general rule is that the seller in
an action for the conversion of the goods may recover the
unpaid balance of the purchase price, with interest. ^^^ But
where the entire right has revested in the seller, and he has
an inmiediate right to take the goods, free from any claim

Online LibraryTheodore SedgwickA treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 2) → online text (page 16 of 91)