
    ADOLPH NAUMAN, Plaintiff and Respondent, v. JOSIAH CALDWELL, Defendant and Appellant.
    
      [Decided March 5, 1870.]
    If to a demand for the return of loaned property the loanee answers that he has used the property, and has obtained a loan thereon (the property not having been lent for that purpose), this is sufficient evidence of a conversion.
    The measure of damages in an action for the conversion of property is its highest market value between the date of the conversion and the day of trial.
    Where the plaintiff in such an action introduces proof as to the value of the property between certain periods, it is not error to exclude proof offered by the defendant as to its value at times prior and subsequent to said periods.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment entered upon the verdict of a jury at a trial term held by Justice Freedman.
    The evidence in this case established the following facts: That in March, 1867, the plaintiff loaned the defendant'a bond issu'ed by the South-west Pacific Bailroad Company. Three days afterwards plaintiff requested its return from defendant, and was informed by defendant that he had used the bond in obtaining a loan. Plaintiff then told defendant he had no right to use the bond in that manner, and that he must return it that day.
    Several times afterwards, and particularly in October, 1868, the plaintiff demanded the return of the bond, but it was never returned, and this'action was commenced in December, 1867, to recover the value thereof.
    The only question that arises in the case is upon the value of the bond and the testimony relating thereto.
    William Gr. Ward and William Offernan, witnesses for plaintiff, testified that the value of these bonds in March and April, 1867, was eighty per cent, of their value. On cross-examination, Offernan testified to the value of the bonds in February, 1867, being seventy-five per cent., and in May, 1867, sixty-seven per cent., of their par value. Adolph Hauman, the plaintiff, testified to the interest on the amount of this bond being $143, from 1st April, 1867, to the time the cause was placed on the calendar.
    William J. Dodd, a witness for defendant, testified that he tried and was unable to make any - sale of these bonds in March or April, 1867. That he sold $150,000 of these bonds at public sale on the 21st of May, 1867. On being asked the price obtained, plaintiff’s counsel objected to the question and to any testimony being received as to the value of these bonds on the 21st of May, 1867, and the court sustained the objection.
    Albert H. Hicolay, a witness in behalf of defendant, testified that he sold $15,000 of these bonds at public sale, on the 14th March, 1867, and obtained prices varying from 64 to 70 per cent. That he sold in like manner on the 25th March, 1867, $12,000, at prices varying from 64-J- to 65 per cent.
    The defendant’s counsel offered to prove by this witness sales of these bonds in August and up to October, 1867. On objection by plaintiff’s counsel, the court sustained the objection and excluded the testimony.
    The • court charged the jury to confine themselves, on the question of value of the bond, to the day its return was first demanded. To which an exception was taken.
    
      Mr. Thomas Henry Edsall for appellant.
    The plaintiff having loaned and delivered the bond to the defendant, his original possession of the bond was lawful.
    
    Defendant’s original possession of the bond being lawful, there must have been shown a wrongful "detention, after a demand and a refusal to constitute a conversion (Powers v. Bassford, 19 How., 309; Wells v. Kelsey, 15 Abb., 53; Hall v. Robinson, 2 N. Y., 293; Munger v. Hess, 28 Barb., 75.)
    The conversion of the bond, therefore, occurred, if at all, in October, 1867.
    How, the rule of damages, in case of the conversion of an article having an uncertain or fluctuating value is the highest market valuej^om the time of the conversion to the time of trial (Sedgwick on Measure of Damages, 478 and cases cited).
    These bonds were shown to have fluctuated in value; and evidence was adduced by plaintiff showing sales at various prices in .February, March, and May, 1867, but there was no proof offered or given by plaintiff of any value whatever to such bonds later than in May, 1867, except that one of his witnesses swore that they were unsaleable after the middle of June, 1867.
    Therefore, the plaintiff having rested his case without proof of any value since, and consequently, any damage sustained by the conversion of the bond, there was nothing to go to the jury, and the defendant’s motion for a nonsuit should have been granted.
    The court erred in sustaining the objections to defendant’s question as to sales, and the offer to prove the value of these bonds, up to and since October, 1867.
    The court erred in charging the jury to confine themselves to the question of the value of the bond on the da/y its return was first demanded by the plaintiff.
    
    
      Mr. Charles Wehle for respondent.
    A cause of action accrued to the plaintiff the moment a demand was made, and failure to return the bond (Boyce et al. v. Brockway, 31 N. Y., 490; Kennedy v. Strong, 14 Johnson, 128; Powers v. Bassford, 19 How., 309; see Kendricks v. Decker, 35 Barb., 298).
    The pledging of the bond by defendant for the loan of $10,000 was a wrongful conversion (Dudley v. Hawley, 40 Barb., 297; Kennedy v. Strong, 14 Johnson, 128).
    The measure of damages is the value of the bond at the time of conversion with interest to trial (Goulet v. Asseler, 22 N. Y., 225; Barton v. Fiske, 30 N. Y., 166; 2 Ker., 40; 18 N. Y., 496).
    The plaintiff, in absence of proof of the value of the bond, was presumptively entitled to its full value (Potter v. Merchants’ Bank, 28 N. Y., 641).
    
      The conversion took place the moment the demand was made and a refusal to return, particularly as the defendant’s refusal to return was put upon the ground that he had pledged the bond of plaintiff as security for a loan.
    This fact not being disputed, left the question of conversion one of law for the court, and not one of fact for the jury.
    As there was no conflict of evidence as to the time of conversion, that question became a question of law for the court, and not a question for the jury (Newkirk v. N. Y. and Harlem R. R. Co., 38 N. Y., 158; Burns v. Erben, 40 N. Y., 463).
   By the Court:

Jones, J.

The evidence that three days after the loan of the bond the plaintiff met defendant and said to him, “ Hr. Caldwell, you had better return me that bond; I want it,” and his reply thereto that he had obtained a loan on the 19th for $10,000, and had used the bond, was (being uncontradicted) sufficient evidence of a conversion on the 19th of March.

Nothing subsequently transpired to waive that conversion. Plaintiff’s endeavors to obtain his bond without recourse to legal measures had no such effect.

The evidence sufficiently shows that the 19th referred to in this conversation was the 19th of March, 1867.

A conversion on the 19th of March, 1867, having been shown, the plaintiff was entitled to recover as damages the highest market value of such bond between that date and the day of trial.

The plaintiff proved, by William G. Ward, the agent of the company that issued this bond, that the bonds from the 11th of March to the 10th of April were worth in the market 80 per cent., and that during that period he had sold $60,000 of the bonds at that rate. Defendant introduced evidence showing that one William J. Dodd, during the months of March and April, 1867, endeavored to make a sale of bonds of this description without success; and that Albert H. Nicolay sold at auction on March 14,1867, $15,000 of bonds at prices ranging from 64 to 70 per cent., and on March 25, 1867, $12,000 from 6If to 65 per cent.

The evidence thus given by the plaintiff and defendant on the subject of the value of the bonds in March and April, 1867, raised a disputed question of fact as to that value, to be submitted to the jury. It was submitted, and we see no cause for disturbing their verdict.

The evidence offered by the defendant as to the value of the bonds before March and subsequent to April was immaterial to the defense. If it was to prove that the bonds had a higher value at those times, then its exclusion was advantageous to the defendant and he cannot complain of it. If it was to prove that the bonds at those times were lower than in March and April, then it was immaterial, because the plaintiff was entitled to recover the highest value between the 19th of March, 1867, and the day of trial, and he had introduced proof as to what the value was between March 19, and April 10.

The request to the judge to leave it to the jury to determine when the conversion occurred was properly refused, as there was no conflicting evidence on that point-

judgment affirmed, with costs.

Spencer, J.

(concurring). I think the evidence shows a conversion of this bond in March or April, 1867.

The court excluded testimony of the value of this bond at any time after March or April, and substantially charged the jury to confine themselves to that time (March or April) in deciding the question of value.

The only error in this case, if any exist, lies in this ruling and charge of the court, and I confine my remarks to that point.

The general rule in trover cases, as established by decisions in the English and American courts, is, That the damages are measured by the value of the thing taken or converted.” This rule is subject to qualification and subdivision, by the circumstances of each case, namely, as to the time when value is to be estimated, as to special damage for detention, as to interest on the value, and as to the estimation of value when the property converted has been changed or increased in value after conversion and probably in other respects, but all these variations favor an estimate of the highest value of the article converted, from the time of conversion to the time of trial, or the commencement of the action.

In this State the law is well settled that damages are to be estimated upon the value of the article.

1st. When the value remains fixed, the damages are the value with interest from the time of conversion.

2d. When the value is fluctuating the damages should be the . highest value of the article at any time between the conversion and trial.

The highest value of these bonds between conversion and trial was in March and April, 1867, about the time of their conversion.

Applying the rule of damages as stated, the ruling or the charge of the court in this case worked no injury to the defendant, for if we assume that the testimony excluded might have established a higher value, the plaintiff would have been benefited only, and if a lower value, the defendant would not have been entitled to its consideration'by the jury.

A similar ruling and charge by Judge Woodruff at a trial term in the Common Pleas, in the case of Dana v. Feedler (12 N. Y. Reports, 44), was reviewed by the General Term of that Court and disapproved in part, yet was fully approved and affirmed by the Court of Appeals.

The judgment should be affirmed.  