Weaver v. Commercial Savings Bank

FELLOWS, J. (after stating the facts). But two questions require consideration. The trial judge instructed the jury: “If you find for the plaintiff you will proceed to estimate his damages. The measure of the plaintiff’s [340] damages will be the highest market value of the stock at any time during which it was wrongfully withheld from him.” This instruction is not in accordance with the rule adopted by this court in Vos v. Child, Hulswit & Co., 171 Mich. 595 (43 L. R. A. [N. S.] 368), and followed in Wallace v. H. W. Noble & Co., 203 Mich. 58. The rule there announced and which is applicable here is that the plaintiff was entitled to recover on the basis of the highest market price reached by the stock between the time of its conversion and the expiration of a reasonable time to enable him to purchase other shares in the market. The instruction in the instant case was erroneous, went beyond this rule and allowed a recovery on the basis of the highest market price during all the time the stock was withheld from plaintiff and evidence was admitted showing the highest market price over an extended period, which period can not be said as matter of law to be a reasonable time within which to repurchase the stock in view of the dispute as to the time plaintiff learned of the conversion. The cases cited fully discuss the rule and the reason for the rule and render it unnecessary to repeat what will be there found. Defendant’s counsel by preferred requests sought to limit defendant’s liability to that of a gratuitous bailee. We think these requests were properly refused. If the defendant’s theory of the case was true, defendant was not the bailee of the plaintiff but the bailee of Ludwig; if plaintiff’s theory was true, defendant was not a gratuitous bailee, there was a consideration moving to it for the bailment. The claim of the plaintiff, if true, established the fact that the stock left with the bank on May 9th became additional security to the bank for plaintiff’s loan; it was not to be surrendered except upon payment of the purchase price to the bank, which purchase price was to be [341] -applied on plaintiff’s note. Under these circumstances there was a consideration moving to the defendant and the rules appropriate to the liability of a gratuitous bailee are not applicable. For the error pointed out the case must be reversed with a new trial. Defendant will recover costs of this court. Wiest, C. J., and McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.