
    Frank Kasper v. Anton Walla.
    Filed October 7, 1896.
    No. 6695.
    Conversion of Mortgaged Chattels: Measure oe Damages. The measure of damage in an action by the mortgagee for the conversion of mortgaged chattels is the amount of the plaintiff’s mortgage, not exceeding the value of the property converted.
    
      Error from the district court of Douglas county. Tried below before Scott, J.
    
      Edward W. Simeral, for plaintiff in error.
    
      Cápele & Piatti and II. V. Montague, contra.
    
   Post, C. J.

This was an action by the plaintiff below, Walla, for the conversion by the defendant therein, Kasper, of a certain printing press, printing material, type, and office furniture in which the former had a special interest by reason of a chattel mortgage executed by one Hospodsky. The facts out of which the controversy arose are as follows : Some time previous to the alleged conversion Kasper and Hospodsky purchased from Walla the presses, type, material, and office furniture of the Nova Vlast, a newspaper published in the Bohemian language, for the consideration of $800, of which one-half was paid in cash by the former, and the balance represented by the unsecured notes of the latter. Hospodsky subsequently executed to Walla a chattel mortgage upon his undivided half interest in the property so purchased, for $340, as security for the notes mentioned. Kasper, who had in the meantime added to the stock above described property of like character purchased on his own account, sold the entire plant to one Rosisky, receiving in payment therefor certain shares of the capital stock of the Pokrok Zapadu Printing Company, of which the said Rosisky was president and manager. Thereupon, as above stated,' this action was instituted by Walla and prosecuted to judgment in his favor, and which has been removed into this court for review.

It is first alleged that the district court erred in admitting proof of the.amount and value of the stock of the Pokrok Zapadu Company received by Kasper in exchange for the property mentioned. A question to which prominence was given at the trial was whether the transaction above mentioned with Rosisky as tbe representative of tbe Pokrok Zapadu Company included tbe entire plant of tbe Nova Vlast, or Kasper’s interest only. Tbe latter having testified in bis own behalf that tbe consideration for tbe shares of stock received by him was bis interest in tbe presses, type, and furniture, tbe plaintiff was, by way of cross-examination, permitted to show tbe value of such stock. The value of tbe consideration given by the defendant was, to say tbe least, one of the circumstances accompanying and tending to explain tbe disputed transaction, and was accordingly admissible for that purpose.

Tbe only other assignment of error relates to tbe giving of instruction No. 5 by tbe court on its own motion, to-wit:

“5. If you. find for tbe plaintiff, tbe measure of bis re-, covery will be tbe market value of tbe property converted by defendant at tbe time of such conversion, with interest thereon from tbe date of such conversion to tbe 6th day of February, 1893, providing tbe amount you find was tbe value of tbe property at tbe time of conversion, with interest added, does not exceed tbe amount you find due plaintiff on bis notes, interest added as above explained, and providing further, that tbe value of the property must be the fair market value of tbe property at tbe time of tbe conversion, not what It did in fact sell for, unless you find that tbe price at which it sold was tbe fair market value in tbe market for such property. In other words, if you find for tbe plaintiff, yofir verdict should be for tbe plaintiff for such an amount as you find due him from Hospodsky on tbe mortgage and notes, but tbe same must be within and not greater than tbe fair market value of tbe property as shown by tbe evidence.”

This instruction, it is argued, authorizes a recovery for tbe amount of tbe mortgage described without regard to tbe value of tbe property converted. But tbe language there employed does not, in our judgment, admit of any such interpretation. Taken together, tbe several paragraphs correctly state tbe measure of damage, viz., tbe amount of plaintiff’s mortgage, provided the amount due thereon does not exceed the value of the property converted.

There is no error in the record, and the judgment will be

Affirmed.  