Musgrave v. Beckendorff

The opinion of the court was delivered, by Read, J. The question on this case is, what is the measure of damages on a loan of fourteen bonds of $1000, twelve of which were State of Missouri sixes, and two Hannibal and St. Joseph Railroad bonds, upon an agreement to return the identical bonds in two years, with interest. Baron Parke, a great authority, in Shaw v. Holland, 15 M. & W. 145, says: “ With respect to the amount of damages, I was at first disposed to think that this was like the case of an action for not replacing stock, in which the, measure of damages is the difference of price on the day it was to have been replaced and on the day of trial.” In Owen v. Routh, 14 C. B. 327 (78 E. C. L. R.), it was held, that the true measure of damages in an action for not redelivering shares lent to the defendant, upon a-contract to return them upon a given day, is not the market price at the time of the breach, but the market price at the time of the trial. The previous authorities were cited, and Lush said: “ All the authorities, it must be conceded, are in favor of the plaintiff’s view as to the [312] last point. It would be vain to attempt to induce the court to come to a different conclusion, assuming that the measure is to be, not the highest price at any intermediate day, but the price on the day of the trial.” Chief Justice Jervis said: “ Mr. Lush has very properly conceded that he is bound by the authorities upon the question as to the proper measure of damages in this case, which are to be estimated at the market price of the shares at the time of the trial.” In Vaughan v. Wood, 1 Mylne & K. 403, it was held by Sir John Leach, Master of the Rolls, “ that where a bond is given by the borrower of a sum of stock, to secure the replacement of the stock, and payment in the mean time of sums equal to the interest and dividends, and a bonus is afterwards declared upon the stock, the lender has an equity to be placed in the same situation as if the stock had remained in his hands, and is consequently entitled to the replacement of the original stock increased by the amount of the bonus, and to the dividends in the mean time as well upon the bonus as upon the original stock:” Mayne on Damages 83 (92 Law Lib.). In Clark v. Pinney, 7 Cowan 687, the court say, “Most of the cases in which this principle has been adopted have grown out of contracts for the delivery and replacing of stock, and it is believed there is no case to be found in England, in which the damages have been confined to the value of the stock at the time when it should have been replaced, where the action was brought upon the contract itself, and the question was distinctly presented and passed upon by the courts, it appearing affirmatively that the stock was subsequently of greater value.” In Romaine v. Van Allen, 12 Smith 309 (26 N. Y.), it was held in a case where the trial was before a referee, and commenced on the 25th October 1861, and was concluded on the 25th July 1862, in an action for the wrongful conversion of shares of corporate stock, that the plaintiff was entitled to recover the highest price it had reached between the time of conversion, and the end of the trial. The price of the stock rose during the continuance of the trial from $5962 to $8175. It is clear, from the language of the court, that the English measure of damages, in actions for refusal to replace or return borrowed stock, is approved substantially by the Court of Appeals in New York. And this is clearly the rule in Connecticut: Waite v. Pritchard, 19 Conn. 212. The language of the court in The Bank of Montgomery v. Reese, 2 Casey 147, certainly sustains this view of the proper measure of damages, which is certainly applicable to a case like the present, where the value is the highest at the time' of trial. ' The jury took the highest value of the stock just preceding the trial, there being no later estimate submitted, and there is, therefore, no error under the charge of the court. Judgment affirmed.