
    *Dolittle & Chamberlain v. Edward McCullough.
    A written assignment of personal property from A to B, as agent, authorizing B to sell the property to C & D, at a price therein named, to be paid by them to the workmen and creditors of A, obtained by threats of personal violence by the workmen, was voidable on the part of A for duress.
    If A chose to avoid said assignment, it was incumbent upon him to do so, by notice to B and to C & D, when released from duress.
    Where, previous to notice of avoidance of the assignment for duress, C & D had in good faith, in accordance with the terms of the assignment, and at the request of the agent, purchased the property, and paid the price to the workmen for A’s benefit; upon the avoidance of said assignment, and action of trover brought by A against C & D, the payment to them so made to the workmen for A’s benefit, is admissible in evidence on the trial, in mitigation of damages.
    Where such evidence has been improperly excluded, but, pending the petition in error, A shows to this court that he has remitted from his judgment the amount of such payment and interest, the judgment will not be reversed for such error.
    Petition in error to reverse the judgment of the district court of Hamilton county.
    In December, 1850, McCullough brought an action of trover against Doolittle & Chamberlain, in the Superior Court of Cincinnati, to recover damages for an alleged conversion of various items of personal property claimed by McCullough to be his.
    Doolittle & Chamberlain pleaded the general issue to the declaration.
    At the April term, 1852, the case was tried to a jury, and McCullough obtained a verdict and judgment for $710.89 ; and Doolittle & Chamberlain appealed.
    At the October term, 1855, of the district court, the case was again tried by jury upon the same issue, and McCullough obtained
    
      a verdict for $847.87 : upon which, after hearing and overruling a motion made on behalf Doolittle & Chamberlain for a new trial, .the court entered judgment.
    From the bill of exception taken in the district court by the plaintiffs in error, the following facts appear:
    *The property in question consisted of two shanties and their furniture, tools, lumber, and other property, situated along the line, on sec. No. 7, of the Cincinnati, Hamilton & Dayton Railroad. McCullough was a sub-contractor under Doolittle & Chamberlain, and previous to November 20, 1850,'held and was using the property, in the construction of the work upon that section, for the accommodation of the workmen employed by him. In the prosecution of his job, McCullough became embarrassed and unable to pay his hands. They in consequence became dissatisfied, and some of them stopped work. McCullough proposed to Bates, the foreman and agent of Doolittle & Chamberlain, that they should buy the property in question, and from the proceeds pay the hands. At McCullough’s request, Bates went and viewed the property, and while viewing it, said to some of the hands who had quit work, and were threatening to sell the property for their pay, that nothing was remaining due to McCullough from Doolittle & Chamberlain, but that if McCullough would sell the property to them he believed there would be enough, and they would pay the hands.
    But after having examined the property, Bates valued it at only two hundred and fifty dollars, whereas McCullough had estimated it to be worth seven hundred dollars. The hands seem to have become apprehensive that the price fixed upon the property by Bates would be insufficient to pay them, and notwithstanding his informing them, at McCullough’s request, that the price of the property, if bought by Doolittle & Chamberlain, would be paid to the workmen, they seemed dissatisfied, became excited, and threatened personal violence to Bates, who soon left them. It was, however, agreed that McCullough should meet a committee to be sent by the hands the next day, at a place called the “ Eleven-Mile House,” to try and make some satisfactory arrangement for the payment of the amount due them.
    According to agreement, the next day McCullough repaired to the “ Eleven-Mile House,” and so did the committee; only it seemed to be a committee of the whole. From fifty to one hundred hands came together, at the time and place named, armed, some with pistols, others with knives, or shillelahs, apparently *determined to enforce a more prompt and satisfactory settlement than they seemed willing to await, from a more select committee of limited numbers.
    Under such demonstrations, accompanied with threatened violence to his person and life, McCullough executed a written assignment of the tenor following:
    “ Springfield, Nov. 20th, ’50. It is hereby understood and mutually agreed that I have assigned to Michael Hickey, for the benefit of himself and all the hands named in schedule marked A, all the tools on that part of Cincinnati, Hamilton & Dayton Railroad on sec. No. 7, together with the two shanties, store-house, and office ; and he is authorized to give them only to Mr. Doolittle & Co., for the purpose of raising money to pay said hands, and any sale he makes I will be satisfied with. And it is further agreed that if there should be any defect in this agreement for want of form, it is hereby waived by me; and the above tools consist of about 25 shovels, 12 mattocks, 12 picks, 27 wheel-barrows, a lot of beds and bedding now in said shanties, 2 axes, 1 wood-saw, 1 road-plow, and a large lot of 2-inch pine plank, used for wheeling, etc., also one cooking-stove, etc.
    (Signed,) “ E. McCullough.
    “Attest, Jos. Cooper.”
    Upon the foregoing assignment is an indorsement of the tenor following:
    “ For a valuable consideration rec’d of Doolittle & Chamberlain, I hereby transfer, set ever to s’d D. & C., all the property in the within-named article. The sum paid for'it is two hundred and fifty dollars, which is to be paid to the laborers that worked for E. M’Cullough, on Sec. 7 of the Cincinnati, Hamilton and Dayton Railroad; which am’t is divided in proportion to each man’s due, as per a list of names and amounts hereafter attached to this agreement.
    (Signed,) “ Mío. Hickey.
    “ Michael Hickey.
    “ Cincinnati, Nov. 23d, 1850,
    “ Cor. 5th & Sicamore, 3d door on Sicamore.”
    Attached, is also written assignment to Doolittle & Ghamberlain, from the laborers of E. McCullough, of all their interest in McCul lough’s assignment and the property therein mentioned, for the recited consideration of $250 ; the amount paid each hand being annexed to his signature.
    Evidence was given by plaintiffs in error, on the trial, tending to prove that they paid a fair price for the property, and that MeOullough *was satisfied with their purchase. On the other hand, he gave evidence tending to show that, some time previous to these transactions, he had requested the plaintiffs in error to purchase the property, and from the proceeds pay off said hands; but asked seven hundred dollars for the property, and that it was in fact worth that sum, or more. McCullough gave evidence tending to show also that said representations, that nothing remained due to him from plaintiffs in error, and that an assignment by him to them would probably enable the hands to get their pay, so made by said Bates, the foréman of plaintiffs in error, were the probable cause of the hands so compelling McCullough to make the assignment. No proof, however, is shown to have been given that plaintiffs in error knew or approved of said representations of their foreman. On the trial, plaintiffs in error offered to prove the state of accounts between themselves and McCullough at the time of said assignment, but the proof was objected to by McCullough, and the objection sustained by the court.
    Plaintiffs in error requested the court to instruct the jury, that if they should find that the contract which McCullough signed at fhe Eleven-Mile House, was in fact obtained by duress, yet, if before the property was transferred to them, in pursuance of that contract, sufficient time elapsed for McCullough to have notified •them not to purchase the property, and he remained silent, such silence is evidence tending to show a ratification, by McCullough ¡of the contract.
    The court refused to give the charge as requested, but charged the jury, that if they should find that the contract was obtained from McCullough by duress, yet if satisfied that he afterward, with a full knowledge of the facts and of his rights, ratified the contract, he could not recover in the case.
    Plaintiffs in error then requested the court to charge, that if the contract was obtained from McCullough by duress, at the Eleven-Mile House, it was'his duty, as soon as he escaped from duress, to. «disaffirm the contract, by notice thereof to them; and that, if he .stood silently by and allowed them to purchase the property, he could not recover from them its value.
    
      This charge the court refused; but instructed the jury, that if *the contract at the Eleven-Mile House was obtained from McCullough by duress, and if he stood silently by and allowed plaintiffs in error to purchase the property, he could not recover the; value of it from them, in an action of trover, unless he was compelled to preserve silence by duress. The court was also requested by plaintiffs in error to charge, that if McCullough, subsequently to the transaction at the Eleven-Mile House, remained silent, and did not make known to them his repudiation of the contract until after they had purchased and paid for the property, knowing at the same time that the object of the transaction at the Eleven-Mile House was to enable Hickey to transfer the property to them; and if he afterward, in conversation with Shoemaker, admitted that he had made the sale to themp these are circumstances tending to prove a ratification of the contract at the Eleven-Mile House, which would prevent McCullough from recovering in the case. The court refused to give such charge; but instructed the jury, that if McCullough, subsequently to the transaction at the Eleven-Mile House, in conversation with Shoemaker, admitted that he had made the sale to Doolittle & Chamberlain, this is a circumstance which the jury may take into consideration in determining the question of a ratification of the contract.
    The court farther charged the jury, that it was necessary for McCullough, in order to recover, to show that he was the owner of the property when converted, and that Doolittle & Chamberlain converted the property to their use unlawfully, and contrary to his-will.
    The court further charged the jury, that an assignment made by a party while under the influence of force and overpowering violence, would not be legal and valid; that if not voluntary, it would be void, unless afterward ratified and confirmed; but that a contract executed under duress may be ratified, and if ratified and confirmed, it is as binding as though legally made. That if the assignment was invalid by reason of duress while in the hands of Hickey, the assignee, it would continue to be invalid in the hands of plaintiffs in error, who could derive advantage from it only by reason of its being a legal assignment when made.
    *In relation to the rule of damages, the court instructed the jury, that if they found for McCullough, their verdict should be for the full value of the property, as it then stood, with interest from. November, 1850, “without credit for the amount paid by defendants 4o the hands.”
    To all these refusals to charge as requested, and to the charges given by .the court, the plaintiffs in error excepted, and now insist that the court erred :
    1. In not permitting them to prove the state of accounts between themselves and McCullough at the time of the transaction.
    2. In refusing to instruct the jury as requested.
    3. In the instructions given.
    4. In overruling their motion for a new trial.
    
      Fox & French, for plaintiffs in error, insisted:
    That the facts clearly proven, and about which there was no dispute, were fatal to the plaintiff’s case, and the court below should have granted a new trial. The facts did not make out a case of duress. As to what amounts to duress, see 10 N. H. 494-498; 23 Pick. 167; Shep. Touch. 61; 5 Dane Abr. 372; 1 Wils. 6; 2 Greenl. E.v. 302; 3 Caines, 168; 1 Fairf. 325; 1 Bailey, 84.
    The assignment made by McCullough, if even under duress, was not void absolutely, but only voidable. All merely voidable contracts in relation to personalty are valid until rescinded, and, being valid, pass the title to the grantee, so as to enable him to sell to •innocent purchasers. 1 Met. 557; 12 Barb. 641; 21 Vt. 129; 9 Barr, 16; 2 Parsons on Contr. 277; 16 Eng. L. & Eq. 408; 5 Eng. 379; 1 Sumner, 309; 15 Mees. & Wels. 216.
    The amount of debts paid by plaintiffs in error with the proceeds •of the property, was competent evidence in mitigation of damages. Forshay v. Furguson, 5 Hill, 154; 2 Phil. Ev. 125; 20 Conn. 207; 12 Ib. 484; 3 Dana, 49; 9 Wend. 36; 16 Ib. 607, 2 Kent Com. 253; 11 Paige, 107.
    
      *King, Anderson & Sage, for defendant in error, insisted:
    That the verdict was in accordance with the evidence.
    ■ That in the rulings and charge of the court there is no substantial error.
    That in trover the plaintiff has a right to a full compensation in •damages, which the defendant can neither mitigate in part nor defeat in whole, by any act of his own, without the plaintiff’s consent. Hanmer v. Willson, 17 Wend. 91.
   Sutliff, J.

This court can not revise the judgment of the district court in respect of the weight of evidence upon the trial being in favor of or against the verdict. An inspection of the record very obviously does not afford this court the same means possessed by the district court of determining the preponderance of evidence given upon the trial in respect of the issue. The court under whose observation the evidence upon the trial was given had an opportunity to judge of the manner and measure of the evidence for and against the affirmative of the issue, which this court does not possess. The decision of that court as to the weight of evidence being in favor of the verdict, by the exercise of their legal discretion in overruling the motion for a new trial upon that ground, this court can not call in question.

The district court excluded the proof, offered by plaintiffs in error, of the state of the accounts between the parties. In this we do not perceive any error. The object of the proof, when offered, was not stated. The court trying the case did. not, and we can not, perceive what relevancy the state of the accounts between the parties had to the issue — whether the plaintiffs in error had or had not wrongfully converted to their own use the goods and chattels of defendant in error, as charged. Inasmuch as there was no evidence tending to connect plaintiffs in error with the statement of Bates, that there was nothing due McCullough from them, we think the proof proposed was not improperly excluded.

Apart from the foregoing questions, the claim of plaintiffs in error, and upon which their counsel rested their defense .in the court below, was, that their purchase of the property was valid. *They held by an apparent valid contract in writing, executed by McCullough.

On the trial below, it was insisted, on behalf of plaintiffs in error, first, that McCullough was not in fact under duress at the time of executing this bill of sale or assignment; and, second, that even if under duress at the time of its execution, by his subsequent conduct he had recognized the validity of the transfer, and therefore could not, by bringing an action of trover, treat the assignment as a nullity.

The record shows clearly that the whole defense of plaintiffs in error against a recovery rested upon these two propositions. Any charge of the court tending to prevent their fully and fairly presénting their defense, would bo error. Does the record in this-respect disclose such error?

It is true, the court refused to charge the jury in the language-requested by counsel for plaintiffs in error; but the court did instruct the jury upon the points of the case requested, only in language somewhat different from, that which they were requested ta use. The language used by the court, in each particular upon, which the court was asked to give instructions to the jury, was perhaps a material qualification of the rule of law proposed and insisted upon by counsel for plaintiffs in error.

• If the instructions they requested to be given to the jury were-strictly correct and legal, relating, as they did, directly to the issue, it was their right to have the instructions so given, as proposed by them.

In regard to the first proposition on the part of the defense, that McCullough was not in fact under duress, counsel for plaintiffs in error seem rather to complain of the finding of the jury, as contrary to the evidence, than of any erroneous holding of the courbas to-any point of law. And we have already remarked upon the action of the court in overruling the motion for a new trial.

The instructions of the court to the jury, touching the nature of a duress and its effect upon a contract obtained thereby, we think correct; and we do not understand counsel as particularly excepting to the charge of the court in that regard.

*But upon the second proposition, that if the contract was obtained by duress, it was afterward ratified, the court was requested to instruct the jury that if they should find that sufficient time had elapsed after the contract was obtained from McCullough, pi-evious to the purchase by plaintiffs in error, for him to have notified them not to purchase, and he remained silent, such silence was evidence of a ratification. We think such instruction, without any qualification, would not have been strictly correct.

Upon this point of the ease, the court instructed the jury that'if they were satisfied that the plaintiff, with a full knowledge of the facts and of his rights, ratified the contract, he could not recover; that, if he stood silently by, after the contract or assignment had been so obtained from him, and after he was released from duress, and allowed the then defendants to purchase the property, he could not recover in that action. And we think the charge of the court in that respect unobieetionable.

From a careful examination of the record, we are unable to discover any substantial error going to affect the right of recovery on the part of defendant in error.

But in relation to the rule of damages, as to the amount to be recovered, we regard the instructions of the court to the jury as •exceptionable in one particular.

The record shows that previous to the avoidance of his assignment or contract on the part of McCullough, the plaintiffs in error had purchased the property, and paid the price specified by the contract according to its terms, to the hands and creditors of McCullough. His agent, Hickey, had sold the property- to the ■plaintiffs in error, with McCullough’s written authority and instructions in his hand, and according to the terms thereof, and received ■therefor the payment of the $250 to the workmen, the creditors of McCullough, and obtained their acquittance and receipts to McCullough. This was the manner of payment for the property proposed by McCullough to plaintiffs in error before the difficulty with his workmen; at which time he was requesting plaintiffs in error to purchase this property, and from the purchase money to pay his indebtedness to the hands.

*Under this state of facts, the court instructed the jury that they should regard the value of the property at the time of the conversion as the rule of damages, “ without credit for the amount paid by the defendants to the hands,” for plaintiff.

The value of the property, it is true, in an action of trover, is the general rule of damages. But under this general rule there ■are certain exceptions as well established as the rule itself. These ■exceptions rest upon the same equitable principle that the rule does. That principle requires that the plaintiff should recover a just compensation, and no more, for the damages which he has actually sustained by the conversion of his property. If the property has been retaken, or returned, after taken, in whole or in part, such fact is always regarded as an exception to the general rule, that the full value of the property should be regarded as the amount of damages to be recovered; and the facts are permitted ■to be given in evidence in mitigation of damages.

Resting upon the same principle, is the case where property has •been taken in the exercise of a supposed right, and sold, and the proceeds paid for the benefit of the owner, in discharge of his indebtedness, when it afterward turns out that the taking and sale were without authority. And we regard the facts in such a casa as constituting an exception to the general rule, that the plaintiff is entitled to recover the full value of the property as the amount of his damages.

If the proceeds of the sale of the property had been paid to the owner, wherein would it have differed from a return of the property, or part thereof to him ? And we are not able to perceive why a payment of the proceeds of the property for the owner, where he has unquestionably received the benefit of such payment, and the proceeding on the part of the defendant has been in good faith, should not also go in mitigation of damages.

This view of the subject, which, we regard as applicable to the case, seems to ns fully sustained by the decisions of other courts, among which see Price v. Benjamin, 14 Pick. 356; Baldwin v. Porter, 12 Conn. 437; Clark v. Whittaker, 19 Ib. 330; Curtiss v. War’d, 20 Ib. 204; Froshay v. Ferguson, 5 Hill, 154.

*TJnder this view of the case, we should feel constrained to reverse the judgment below, had the cause of reversal been permitted to remain. But during the pendency of this proceeding in error, the defendant in error, by counsel, on leave of the court, appear» and remits from the judgment of $847.87, rendered by the district court, as of the date thereof, the sum of $250, so paid for him from the proceeds of the sale of said property, with interest from the time of payment, amounting at the date' of judgment to $323; leaving due upon the judgment, at the rendition thereof, only $524.87.

' The judgment of the district court is therefore affirmed for that sum, and costs of that court, but at the costs of the defendant int error in this court.

Bartley, C. J., and Swan, Brinkerhóee, and Scott, JJ., concurred.  