Boutwell v. Harriman

The opinion of the court was delivered by Royce, Ch. J. The entry of the defendant upon the premises where the oats were, and the cutting and threshing them, was a trespass. What was done by the defend [518] ant was an exercise of dominion over them which was inconsistent with the right of the owner. Their quality was changed, and the evident intention was to appropriate them to the use of a third person; those acts were a conversion of the property. The oats and straw were left in the possession of the plaintiff, but they were not appropriated to his use, and were consumed by stock which Mrs. Wiswell put upon the farm after the plaintiff left it. The defendant claims that the plaintiff is only entitled to recover nominal damages. The general rule is, that where property has been converted the owner is entitled to recover the value of it at the time of the conversion; but where, after the conversion, the property has been received back, or has come to the use of the previous owner, such facts are considered in mitigation of damages. Here the property was not received back, and did not come to the use of the previous owner. He was as effectually deprived of his property as he would have been if the defendant had removed it from his possession and destroyed, or otherwise disposed of it. There was no error in the judgment in the matter of damages; neither do we perceive any error in the granting of a certified execution. See Whiting v. Dow, 42 Vt. 262; Hill v. Cox, 54 Vt. 627. The judgment is affirmed.