
    Merrimack,
    Dec., 1898.
    Harvey v. Morse.
    In an action of trover by one having a special property in the goods converted, the measure of damages is the value of his interest at the date of conversion.
    Trover, for railway ties. The plaintiff made a contract with D. & E., whereby he was to cut the ties from timber standing upon their land, and pay them for the ties and for drawing to the railroad, all that he should receive for them over ten cents each. Under the contract the plaintiff employed and paid choppers whs cut the ties, which D. & E. drew out and piled on land of the railroad. While the plaintiff was negotiating a sale of the ties to the railroad, they were attached and sold, upon a writ against D. & E., by the defendant, a deputy sheriff.
    Subject to the plaintiff’s exception, the court refused to instruct the jury that the measure of his damages was the value of the ties at the date of the conversion, and instructed them that the measure of his damages was the amount which he was entitled to retain upon a sale of the ties, or ten cents for each tie, with interest. The jury returned a verdict accordingly.
    
      Napoleon B. Hale and Albín, Martin Howe, for the plaintiff
    
      Burnham,, Brown Warren, for the defendant.
   Pike, J.

The contract between D. & E. and the plaintiff did not constitute a sale of the ties. Rowell v. Claggett, ante, p. 201. It was simply an agreement whereby the plaintiff' obtained a special property in them, for cutting them and negotiating their sale. The value of this special property was fixed by the agreement at ten cents a tie. In no event was the plaintiff' to receive more than this from the contract. The general property, retained by D. & E., was of an uncertain value, and depended upon the sale the plaintiff might be able to effect. The proceeds of the sale, less the value of the plaintiff’s interest, was the share which D. & E. had in the transaction.

When the attachment was made the plaintiff’s part of the contract was practically performed, although the sale was not complete. The general property in the ties remained in H. & E., and was subject to attachment for their debts. The plaintiff’s damages -were only the value of his special property, and this was what the jury were instructed to allow him.

.'Exception overruled.

Parsons, J., did not sit: the others concurred.  