
    James R. Sheldon, plaintiff in error, vs. The Southern Express Company, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Bailment — Trover—Measure of Damages. — Where A is indebted to B, and transfers to him as collateral security a receipt given to A for a note for collection, it being for a larger amount than A’s debt to B; and the bailee who has the note for collection, with knowledge of the transfer and consenting thereto, permits it to go into the possession of A, who collects it' and pays B a portion of his debt, the measure of damages in an action of trover by B against the bailee, is the unpaid portion of B’s debt from A. As B would not be liable over to A for any balance, his claim for damages is limited to the amount of his special property in the note.
    *2. Evidence. — On the trial it was competent for the bailee to prove that when he was notified by A and B, who were together, of the transfer, he was not informed that it was made as collateral security, but on the contrary it was stated by A that the transfer was made only that the money might be paid to B in the event that A was absent, as he expected to be absent, provided B was present when such a statement was made.
    3. Question for Jury — Case at Bar. — Under the facts as they appear in the record, it would have been proper to have submitted the question to the jury whether B was present at the time A made the statement to the bailee’s agent.
    Bailment. Evidence. Before Judge ScpieEY. Chatham Superior Court. May Term, 1872.
    Sheldon brought suit against the Southern Express Company for the value of a promissory note, dated January 4th, 1868, due January 1st, 1870, for the sum of $1,250 00 in gold, with interest thereon at ten per cent, from date, signed by C. S. Bennett, which note he alleged that he delivered to the defendant at Savannah, Georgia, on December 6th, 1869, to be conveyed to Columbia, Texas, there to be collected and the proceeds to be returned to him at Savannah. He further alleged that the defendant has neither returned to him the note or its proceeds, to his damage $5,000 00. The defendant pleaded the general issue.
    The facts of the case are as follows:
    On the day stated in the declaration, one Frank Tillman delivered the note in controversy at Savannah, to the defendant, taking a receipt therefor, in which the defendant agreed to collect said note, together with the interest on another note due by the same party, amounting in all to $1,500 00 in gold. Tillman was indebted to the plaintiff in the sum of $1,007 50, to secure the payment of which he transferred the said express, receipt to him, of which due notice was given to the defendant. When the note reached its destination the maker was unwilling to pay the interest on the other note unless it was produced, and the defendant declined to receive the principal and interest on the note in its possession unless the entire amount, making in all $1,500 00 in gold, was paid. The defendant notified Tillman of these facts, who informed the *plaintiff, and asked him to go to Texas to attend to the matter, which he declined doing. Tillman went to Texas, procured the note from the defendant, collected from the maker $1,550 00, returned to Georgia and paid to the plaintiff $220 in gold.
    The matter directly in issue was whether the defendant was liable to the plaintiff for the entire value of the note, or only for the balance due by Tillman on the indebtedness, to secure which the note was transferred.
    Under the instructions of the Court the jury returned a verdict for the plaintiff for $1,500 00 in gold, with interest from January 1st, 1870. Whereupon, the defendant moved for a new trial upon the following grounds, to-wit:
    1st. Because the evidence discloses that the said express receipt was transferred to Sheldon, the plaintiff, to secure a debt of $1,007 50, in currency of the United States, and that the sum of $220 00 in gold was paid by Tillman to Sheldon out of the proceeds of the note collected by him in Texas, thus reducing the sum actually due Sheldon by Tillman to less than $800 00 in currency, whereas, the verdict of the jury gives him $1,500 00 in gold, with interest from the 1st of January, 1870, and is contrary to law.
    2d. Because, if Sheldon recovered in this action more than the amount actually due to him by Tillman, he must recover and hold the same as the trustee for Tillman, whereas, Tillman actually has no interest in said amount, having already received the note from the defendant, and collected the whole amount.
    3d. Because the said Judge erred in excluding the testimony of Adams, to the effect that Tillman had explained to him that his reason for transferring the receipt to Sheldon was that he was going away from the city and wished the money paid to Sheldon only in the event of its coming during his absence, and that the fact of its being transferred as collateral security was never disclosed to him.
    4th. Because the said Judge erred in ruling that the defend- ' ant could not explain its understanding of the contract *made by the transfer of the receipt, when notice of the same was given to the agent, Adams.
    5th. Because the said Judge erred in charging the jury, “that they could not take into consideration any of the evidence going to show what amount was actually due from Tillman to Sheldon, but that it they found that 'Tillman transferred the receipt to Sheldon, and that the defendant was notified of the transfer, then Sheldon was entitled to recover the full amount of the receipt, without regard to the amount due from Tillman to Sheldon, or any amount paid by Tillman to Sheldon.” ’
    The motion was sustained and a new trial ordered. The plaintiff excepted, and now assigns said ruling as error.
    George A. Mercer; Henry B. Tompkins, for plaintiff in error.
    Law, Loveee & Faeligant; Joseph P. Carr, for the defendant.
   Trippe, Judge.

The general rule in an action of trover, as to the measure ' of damages, is the value of the property wrongfully taken or converted; and this is so, whether the action be brought by the general or absolute owner, or by one who has a special property or interest in the thing, such as a bailee, pawnee, étc. Of this latter class, is one who holds the property as collateral security for a debt due from the bailor. The reason why the bailee in such a case as last stated, is allowed to recover the whole amount of the value of the thing pledged, is, because if the whole value is not greater than his claim, then all is his, and if it be greater, he is liable over to the general owner or bailor for any excess in its value beyond the debt for which it is pledged. And not only this, but it is the only way in which the bailor’s right to that excess can be asserted, unless by two actions against the wrong doer. If, then, the reason of the principle that the bailee can recover the full *value of.the thing converted, is on account of the ulterior interest of the bailor, and that interest be discharged or satisfied out of the property itself, will not the rule cease? The liability on the part of the bailee,-as trustee for any surplus, no longer exists. The right of the bailor is gone by his own act in accepting satisfaction, and if what be left and what the bailee does recover, be sufficient, and in fact does discharge his whole claim, he can have no right to complain that he is not allowed to recover what belongs to nobody. This limitation on the measure of damages,- restricting it in certain cases similar to this, to the real damage sustained by the plaintiff in the injury to his special property, is fully recognized in many cases: 9 Pick, 551; 4 Blackf., 348; 47 Penn., 118; HilHard on Remedies for Torts, 412, 413; Sedg. on Damages, 482: In 18 Pick, 283, Shaw, Chief Justice, thus illustrates this point: “A factor has a lien on goods, to half their value. The principal becomes bankrupt, and the property vests in the assignees, subject, of course, to all legal liens. The assignees, denying and intending to contest the factor’s lien, get possession of the goods and convert them. The factor brings trover, establishes his lien and recovers. How shall the damages be assessed? If he recover the full value of the goods, he will be responsible back to. the defendants themselves, for a moiety of the value. To avoid circuity of. action, why should not damages be assessed to the amount of the lien. He is fully indemnified, the balance of the value is in the hands of those entitled to it, and the whole controversy is settled in one suit.”

It does not satisfactorily appear from the record, whether or not the plaintiff was present at the time Tillman made the statement proposed to be proved by Adams, the agent of the express company. If he was present, the evidence was admissible. Its admission and consideration by the jury, would not be in violation of the rule that parol evidence cannot add to or vary a written contract. This was not an action on a written contract between plaintiff and defendant. It was an order indorsed on defendant’s receipt to Tillman to pay the *within to plaintiff. The evidence offered was to show why that order was given, to-wit: that it was only intended to make plaintiff the agent of Tillman. In Carhart Brothers & Company vs. Wynn, 22 Georgia, 24, it was held, that “it may be shown by parol evidence that the indorsement of a note was made for a special purpose, for instance, as an authority to collect.” In that case the plaintiffs were permitted to prove that their own indorsement did not convey the title, and only constituted the indorsee an agent to collect, when such was the fact, and that fact was notified to one of the parties to the note (an indorser) who gave that agent notice to sue.

If the Court be clearly satisfied that the plaintiff was present, the testimony should be admitted. If it be evident that he was not present, of course it should not be admitted, for it then could not affect the plaintiff. The facts proven might leave it such a question as to be properly left to the jury under a proper charge by the Court on that point.

Judgment affirmed.  