
    Wheeler vs. Pereles and another.
    .Conversion: Nonsuit. Some damages always recoverable for a conversion.
    
    1. It appearing' in an action for the conversion of a policy of insurance on plaintiff’s life, assigned to defendant as security for a loan, that the latter had in fact converted the policy, by surrendering it to the insurer and taking another in lieu thereof, plaintiff was entitled to some damages, and it was error to nonsuit him on the ground that he had failed to bring into court the amount due on account of the loan.
    2. What would be the rule of damages in such a case, and what the effect of a present offer by defendant to return the policy, and of plaintiff’s failure to pay into court the amount secured by the pledge, not here considered.
    APPEAL from tbe County Court of Milwaukee County.
    Action to recover damages for tbe alleged conversion by defendants of an insurance policy for $10,000 on plaintiff’s life, issued by tbe Connecticut Mutual Life Insurance Company, and assigned by tbe plaintiff to tbe defendant’s testatoi’, in bis life time, as security for a loan of money. The complaint alleges that plaintiff tendered to defendants tbe amount of such loan, and demanded tbe policy; that defendants refused to deliver it to him; and that its value at tbe time of such demand, was $9,000; for which sum, together with certain special .damages, judgment is demanded.
    Tbe answer denies such tender and demand; states tbe amount of tbe loan for which tbe policy was assigned to defendant’s testator at a greater sum than is admitted, by tbe plaintiff; and offers to surrender tbe policy to him on receipt of tbe amount of such loan and interest.
    Tbe testimony on plaintiff’s behalf shows that be demanded tbe policy of tbe defendants, at tbe same time tendering to them tbe sum which be admits to be due on account of such loan, but that they refused to deliver tbe policy to him, stating that they bad surrendered it to tbe company by which it was issued, to be cancelled, and tbat it bad been cancelled, and they bad received another policy in place of it, thus patting it out of’ their power to comply with such demand.
    The policy in question was a ten-year nonforfeiting policy, on which all payments of premiums save the last had been . duly made.
    On defendant’s motion, the county judge nonsuited the plaintiff, for the alleged reason that he refused to bring into court the amount due on account of such loan. The plaintiff appealed from the judgment.
    
      J. J. Orton, for appellant:
    1. A pledge is converted when the pledgee applies or converts it to his own use without the consent of the owner. 2 Kent’s Com., 577; Eacon’s Abr., “ Trover,” etc. 2. A pledge cannot be sold except on demand and notice. Lewis v. Graham, 4 Abb. Pr., 106; Stearns v. Marsh, 4 Uenio, 227; Wheeler v. JYewiould, 16 N. Y., 398. 3. "When sold or converted, no demand or tender of payment is necessary. Wilson v. Little, 2 N. Y.,443; 2 Caines’ Cas., 200; JEsmayv. Fa-n-ning, 9 Barb., 176,' and cases cited supra. 4. The defendant was bound to restore the identical pledge. 4 Johns. Ch, 490 ; 7 id., 69; 3 Hill, 596; 7 id., 498. 5. The rule of damages is the value at any time between the conversion and trial. 2 N. Y., 449; Sedgw. Ham., 495; 22 Wend., 348; 2 Edw., 461, 470. 6. The pledgor is not bound to receive the pledge back after conversion; and even if he does, it is no bar to his action for damages. Story on Bailm. (4th ed.), § 269; Liver-more v. Northrup, 44 N. Y., 107; Reynolds v. Sheldon, 5 'Cow., 323; Green v. Sperry, 16 Yt., 390; Sedgw., 547; Man-mer v. Wilsey, 17 Wend., 91; Murray v. Bmiing, 10 Johns., 172. 7. The plaintiff was not required to bring the money into court. If money had been advanced, that was matter of defense, setoff or counterclaim.
    For the respondent, a brief was filed by Finches, Lynde & Miller, and there was oral argument by TL. M. Fineh.
    
    They argued tbat plaintiff’s tender was not good, unless tbe money was brought into court (Pillsbury v. Willoughby, 61 Me., 274); tbat tbe county court bad power to make tbe order permitting tbe policy to be returned, and plaintiff, having refused to accept tbe terms of tbat order, had no error to complain of {R. dsW. R. R. Co. v. Runic of Middlebury, 32 Yt., 639); and tbat, until tbe loan was repaid for which it was pledged, plaintiff could recover neither tbe policy nor its value.
   Lyon, J.

Tbe testimony of tbe plaintiff tended to show a conversion by tbe defendants of the policy in question; for certainly, if they surrendered tbe policy for cancellation to tbe company which issued it, and tbe same was in law can-celled, tbat is a conversion, no matter what they received in return for it. It is equally certain tbat where property lias been actually converted, a demand and refusal is not essential to the maintenance of an action of trover therefor. School District v. Zink, 25 Wis., 636.

If the defendants converted tbe policy,- tbe plaintiff is entitled to recover some damages in this action; and there was sufficient proof of such conversion to send the question to tbe jury. Hence tbe nonsuit was erroneously ordered.

Some very important questions as to tbe rule of damages, the effect of a present offer by tbe defendants to return tbe policy in question, and the failure of tbe plaintiff to pay into court tbe amount for which tbe policy was held as security, were suggested on tbe argument. But these questions have not yet been reached in the case, and it would be improper to intimate an opinion upon any of them at tbe present time.

By the Court. — Judgment reversed, and a new trial ordered.  