Chase v. Blaisdell

Emmett, C. J. By the Court. The Appellant has raised' an unusually large number of points in this case, and others still are suggested by an examination of the record. But it will not be necessary to notice them in detail, as we think that all the errors committed are justly attributable to the one great fundamental mistake, of treating this as an action of trover for the logs confided by the Plaintiff to the Defendants under the agreement set out in the pleadings. This erroneous view of the case seems to have been taken alike by the Court and the counsel for the Plaintiff. Had the Defendants become possessed óf the Plaintiff’s logs without authority from him, and converted them to their own use, or being lawfully possessed, had they afterwards made any disposition of them contrary to authority, they would have been liable in damages for the conversion, and the measure of such damage would have been the value of the logs. But when, as in this case, a party comes into possession of property, under an agreement with the owner, and afterwards sells it, [102] in pursuance of the terms of the agreement, for the sole use and benefit of the owner, he cannot, by any possibility, be guilty of con verting the property, originally intrusted to him, and his only responsibility results from th^ disposition he may make of theproceeds of.such sale. If the proceeds be in money, and he refuse to pay it over, upon reasonable demand, or contrary to the terms of the agreement with the owner, he would be liable therefor, as for so much money had and received ; or if the proceeds consist of property other than money, he, upon a like refusal, would be held to have converted it, the proceeds, to his own use, and would be liable in damages, the measure of which would be the value not of the property originally committed to his charge, for that having been sold in pursuance of authority, has never been converted, but the value of the property received in exchange therefor. • It will readily be perceived from this view of the law, that the Judge below erred in every instance, where he admitted evidence as to the value of the logs at any time ; and also in charging, as he did, that the value of the logs was the measure of damages. The real question, if the j ury found that the Defendants converted or refused to pay over the proceeds, was as to the amount of the nett proceeds of these sales, if they consisted of money, and if of anything else, the value thereof, whether the logs sold for more or less than they were worth. The Defendants could not beheld for more than they received on the sale of the logs, unless they wilfully or negligently sold them below their value, in which case there should have been an allegation to that effect, and a special claim for the damages sustained by reason thereof. So too in regard to the allegations that the Defendants neglected to make deposits, and to make exhibits of the condition of the sales and proceeds, as required by the agreement under which they acted. Special damage for each neglect or omission complained of should have been alleged and proved, if denied. But in neither instance would the damage depend upon the value of the logs sold, much less upon their value at the time they received them from the Plaintiff, for they might have been of far greater value then, than at the time they were sold. The damages would depend rather upon the value of [103] the property in the hands of the Plaintiff,, at the time of the neglect complained of, and how the Plaintiff’s interest therein was affected by this neglect or omission. If these acts or omissions amounted to a conversion, the Defendants would be liable to the Plaintiff for the value of his interest in the property converted, deducting all charges contemplated by the agreement set forth; but if the proceeds of the sales were in money,'it is difficult to see how the omission to make deposit, or to make the exhibit required, or even the refusal to pay over on proper demand, could damage the Plaintiff in a sum greater than his interest in the nett proceeds in the Defendants’ hands. This judgment cannot he sustained in any aspect of the case. To enable the Plaintiff to recover by way of damages for a violation of the contract by the Defendants, it is necessary that the damage should be averred. Here no damage is alleged. There are alleged violations of the contract, but these allegations are made apparently for the sole purpose of establishing a conversion of the logs. If there was a conversion at all, it was of the proceeds of the sale of the'logs — not of the logs themselves. "What these proceeds were, or what was their value, does not appear in the complaint, nor is any damage alleged in regard to their conversion. All these things should have appeared by averment, and proof if denied, to enable the Plaintiff to recover in any event. The order denying a new trial is reversed, and a new trial awarded.