Owen v. Williams, Brewer & the John Owen Mining & Milling Co.

Mr. Justice Gunter delivered the opinion of the court: This was an action by plaintiff to recover the value of certain certificates of stock, which it was charged defendants had converted to their use. After issue joined and before trial, the certificates were delivered by defendants to plaintiff and by him accepted. Upon trial the court instructed a verdict for nominal damages, and judgment was entered accordingly. Plaintiff contends that he was entitled upon his complaint to recover substantial damages, and that the court erred in confining the recovery to [80] nominal damages. Defendants contend that the return to plaintiff of the certificates of stock, after issue joined and before trial, worked a satisfaction of the cause of action proceeded on, and that, therefore, plaintiff, upon the cause of action stated, was entitled to recover no more than nominal damages. The complaint was upon the theory of a complete and absolute deprivation of property — that is, that the defendants were to be regarded as the owners of the certificates of stock after the conversion charged —and the action was to recover the value of the stock so wrongfully, converted. This cause of action was extinguished by the acceptance by plaintiff, as owner, from defendant’s of the identical property, the value of which was sought to he recovered in the action. Plaintiff could not have of defendants the value of the property and the property also. The acceptance of the certificates at the time and in the manner stated extinguished the cause of action alleged.— Collins v. Lowry, 78 Wis. 329, 332. Judgment affirmed. Affirmed. Chief Justice Gabbert and Mr. Justice Maxwell concurring.