Work v. Bennett

The opinion of the court was delivered, February 15th 1872, by Sharswood, J. The learned judge below,,in his charge to the jury, as specified in the second assignment, fell into an error, we think, in saying “ Bennett (the plaintiff) still owes them (the defendants) money on account of the Hestonville transactions ; they may bring suit for the amount. But it is no answer to this action for the unlawful appropriation of the property of the plaintiff, to say that he is indebted to them in another transaction.” There was evidence in the testimony of the plaintiff himself, that he had authorized the defendants to purchase the Hestonville shares. He transferred by writing, signed by himself, to one of the defendants, his interest in Fairmount and Girard Avenue and German-town Passenger Railway Company, “ to hold as collateral for margin on Hestonville Railroad stock which he is carrying for me.” Afterwards he delivered to Work the bonds of the Fairmount Park and Delaware River Passenger Railway Company as part of the same collateral; so Work testified, although Bennett asserted that it was a loan merely; but it was evidently a question for the jury. There was evidence, then, that both the stock and bonds were delivered to the defendants as collateral security for the indebtedness of the plaintiff to them on account of the Hestonville transactions. Had the stock and bonds, which were the subject of this action of trover, remained unconverted in the hands of the defendants, the plaintiff could not have recovered without a tender of the amount of the debt for which they were then pledged, or proof of payment of such debt. But they had wrongfully converted them by pledging them for their own debt, and a sale afterwards by their pledgees, without notice to the plaintiff. This dispensed with any tender before suit brought; but as in trover, [489] not the chattels themselves, but the actual damage to the plaintiff from the conversion is to be recovered, the interest of the pawnee is to be taken into account, in settling the amount. The interest of the plaintiff was the market value of the stocks and bonds, subject to the debt for which they wore pledged. It was held in Satton v. Overett, 20 Wend. 267, that a tender must be made before suit brought, where a lien exists, unless the goods have been parted with; in which latter case all that can he claimed by the defendant is a mitigation of damages by way of recoupment. “It appears,” says Chancellor Walworth, “that the plaintiff in error had actually converted the goods by selling them on the day of their purchase ; and if they once had a lien which would have rebutted the presumption of a conversion, from the mere fact of refusing to deliver on demand when the amount of the lien was not tendered or offered to be paid, a tender, after they had put it out of their power to raise the money and deliver the goods by an actual sale, would have been a useless ceremony, and was not necessary to enable the owner of the goods to recover in an action of trover. In such a case, if there was a valid lien in favor of the defendants, before the conversion, they would be entitled to be recouped in the damages to the extent of such lien, but they would not defeat the plaintiff’s action altogether.” So in Johnston v. Stear, 15 Common Bench Rep. N. S. 330. “ There is authority,” says Erie, C. J., “ for holding that in measuring the damages to be paid to the pawnor by the pawnee for a wrongful conversion of the pledge, the interest of the pawnee in the pledge ought to be taken into account.” He cites Cherlery v. Wall, 5 Hurlst. & N. 255; and Brierly v. Kendall, 17 Queen’s Bench 937; with Story on Bailment 315; and Jarvis v. Rogers, 15 Mass. 389. To which may be added, Baltimore Company v. Dalrymple, 25 Md. 271; and Neiler v. Kelley, in this court, 19 P. F. Smith 403. Whether any and what amount was due by the plaintiff to the defendants upon the pledge should have been submitted as a question of fact, and if any amount was found, to be recouped from the damages. The learned judge erred likewise as specified in the sixth assignment of error in charging the jury. “ Finally, in determining the amount of damages, I instruct you to take the highest value which the stock and bonds attained between the time of conversion and the bringing of the suit.” It was decided by this court in Neiler v. Kelley, just cited, that this rule for the'measure of damages only applied where there is a duty or obligation devolved upon a defendant to deliver stocks or securities at a particular time, and that obligation has not been fulfilled. Thus, if in the case before us there had been a demand with the tender of the debt, or a demand after payment of the debt, the rule laid down would have been applicable. But unless such a state of circumstances exists, the measure of damages is [490] the market value of the stocks or securities at the time of the conversion, with interest. There are no other errors which would call for a reversal of the judgment. The question whether there ever was a certificate for the 550 shares of stock included in the action was not properly-presented to the judge, and - an instruction prayed for on that supposed state of facts. It is clear that it is not in the fourth point, for as to the 550 shares of stock described in the plaintiff’s narr. the declaration was amended by adding the words, “ and a certificate therefor.” Judgment reversed, and a venire facias de novo awarded.