
    GEORGE B. BOOMER, Appellant, v. JOHN H. FLAGLER, Respondent.
    
      Conversion of stock by wrongful detention—subsequent delivery and acceqttance.—Measure of damages.
    
    Defendant, being bound to deliver certain shares of stock to plaintiff, refused to deliver the same on demand duly made, on September 24, 1881, and persisted in said refusal until December 17, 1881, when the same were delivered by defendant and accepted by plaintiff. In the meantime, the value of the stock had decreased. The court below refused the offer of plaintiff to prove such decrease, as the measure of damages, and charged the jury that the measure of damages was the interest on the value of the shares from the day of the refusal to deliver to the day of actual delivery.
    
      Held, erroneous; that if the case is considered as a breach of contract, the measure of damages would be the difference between the value of the shares at the time of refusal and the value at the time of actual delivery, to be computed by the jury ; if considered as a conversion, it was a constructive and not an actual conversion, and the defendant, notwithstanding his refusal, could afterwards deliver the shares, which delivery might be considered in mitigation of damages.
    
      
      Decided January 5, 1885.
    Before Sedgwick, Ch. J., and Yak Vorst, JJ.
    Appeal by plaintiff from a judgment rendered in his favor, on account of the inadequacy of the verdict.
    On March 19, 1881, the defendant signed an agreement with one Ferris and others, by which Ferris transferred to defendant 23,000 shares of the Barcelona Mining Company, in certificates of various amounts, among which were two of 5,000 shares each, which shares defendant agreed to hold for six months, and then to transfer them to the holder of the several certificates (unless the trustee took them up sooner, which he did not do), payment being first made of all outlays. On August 18, one Fish bought 5,000 shares of said stock of said Ferris, and received a certificate therefor from defendant. On September 24, the certificate was duly presented to the defendant, and the delivery of said stock duly demanded, as found by the jury, and the said defendant unlawfully refused to deliver the same, and persisted in said refusal until December 17, when the same was delivered. On July 5, 1882, Fish assigned all claim against the defendant to plaintiff, who immediately brought this action.
    The market value of said stock on the day when the same should have been delivered (September 24) was $1.10 a share, or $5,500 for the 5,000 shares. The trial judge instructed the jury that, if they found on the question of fact for the plaintiff, their verdict should be $88.68, the interest on said market value of said stock from the time of demand until the time of delivery, and he refused to permit the plaintiff to give evidence of the market value at the time of the delivery, viz., December 17, 1881, the difference between which amounts plaintiff contended was the true measure of damage. To the rulings of the judge on the measure of damages the plaintiff excepted.
    The jury found for the plaintiff, and the plaintiff brought this appeal.
    
      
      James M. Fish and William H. Arnoux, for appellant.
    —I. The unlawful refusal of defendant to deliver the stock in question upon demand, constituted, in law, a conversion, and thereby a cause of action accrued to plaintiff, which was not waived by the subsequent acceptance of the stock itself (Abridgment of the Common Law by D’Anvers [1 D'Anvers, 21], Countess of Rutland’s case, decided in 38 Eliz.; McKnight v. Dunlop, 5 N. Y. 537 ; Willoughby v. Backhouse, 4 Dowl. & Ryl. 539 ; 2 Barn. & Cress. 821; Allaire v. Whitney, 1 Hill, 488 ; Barber v. Rose, 5 Ib. 76). The subsequent acceptance was in mitigation of the damages only, and not a waiver of the tort.
    II. The rule for determining plaintiff’s damages as laid down by the trial judge, namely, that plaintiff was entitled to recover the amount of the interest on the market value of the stock on the day of the demand, and that his recovery was limited thereto, was erroneous.
    There is no such rule in any form of action for the improper withholding of real property or of merchandise, where the claim does not embrace the principal sum. When the plaintiff recovers the specific property claimed in ejectment, the measure of damages is the value of the use and occupation. The same rule applies where a tenant is unlawfully prevented from entering upon leased premises. It is the value of the use, deducting the amount agreed to be paid (Henderson v. N. Y. Central R. R., 78 N. Y. 423).
    The rule applicable to real estate is also the rule as to personal property (Allen v. Fox, 51 N. Y. 562; Clapp v. Walter, 2 Texas, 130 ; Darbey v. Cassoway, 2 Harris & J. 413 ; Butler v. Nehring, 15 Ill. 488 ; McGarrik v. Chamberlain, 20 Ib. 219).
    The trial judge undoubtedly had in mind, in making the ruling in question, cases of conversion where there had been no restitution. As to that, while the general rule was correctly stated, yet even in such cases that rule has no application to stocks. In Biddle’s Low of Stock Brokers, 416, it is stated as a general proposition that stocks are an exception to ordinary commodities (See Romaine v. Allen, 26 N. Y. 307; Markham v. Jourdan, 41 Ib. 231; Bk. Montgomery v. Reese, 26 Pa. St. 143; Kent v. Glinter, 23 Ind. 1; Bates v. Wild, 1 Hardy [Ohio] 532). One of the exceptions is stated in the Baltimore Railway Company v. Sewell (35 Md. 238, 6 Am. 402), where the court held that the plaintiff in conversion was entitled to the value of the stock claimed, together with the amount of all dividends thereon. Another exception is, that instead of the price at the time of demand and interest, where the stock has been paid for, the claimant can recover the highest price for which the stock has been sold between the day of demand and the time of trial (Markham v. Jourdan, 41 N. Y. 235). And a further exception is made where the stock has not been fully paid, that is, has been bought upon a margin; then the jury are to determine the price within a reasonable time after demand, in which the claimant might have sold the stock if it had not been illegally converted (Baker v. Drake, 53 N. Y. 211).
    The unreasonableness of the rule is further manifest by considering the remarkable fluctuations that have frequently taken place in the price of stocks in panics and corners, or by reason of extra stock dividends, and the temptation to which the trustee would often be subjected in such cases.
    The only case where interest is allowed as the measure of damage, where it does not follow as an incident, is where the demand is a contract for the payment of money. This is because the value of its use is determined by statute. The fair presmnption is that such would not be the rule if the law treated money as a commodity.
    ITT. The true measure of damages in an action for the unlawful detention of personal property where such property has a commercial value and has depreciated in value, while so detained, is the difference between the market-value at the time of demand and at the time of delivery.
    In Masterton v. Mayor of Brooklyn (7 Hill, 62), it is said: “The market price on the day of the breach is to govern in the assessment of damages and in this Bronson, J., concurred, upon the ground that this is the most plain and simple rule ; it will best preserve the analogies of the law, and will be as likely as any other to do substantial justice to both parties. The rule in such case is stated in Dey v. Dox (9 Wend. 129). “ Where the vendor is in default for not delivering goods or chattels in pursuance of the contract of sale, and no money has been advanced by the vendee, the true measure of damages is the difference between the contract price and the value at the time the article should have been delivered. And the reason for the rule is conclusive, to wit: that such damages, added to the contract price, which the vendee has not parted with, will enable him to buy the article in the market.” But in the case at bar we have executed our contract, have parted with our money, and have not the ability to buy. The finding of the jury establishes that plaintiff is the innocent sufferer and the defendant the perpetrator of that wrong done. The general principle applicable to such a case is the doctrine of reparation (Ward v. N. Y. Central R. R., 47 N. Y. 29; Griffin v. Colver, 16 Ib. 489 ; Baker v. Drake 53 Ib. 211; U. S. v. Behan, 110 U. S. 438 ; 4 S. C. R. 81; Phil., W. & B. R. R. v. Howard, 13 How. U. S. 307; Gruman v. Smith, 81 N. Y. 25 ; Griffin v. Colver, 16 Ib. 489).
    In Baylis v. Usher (4 Moore & Payne, 790), a landlord made a wrongful distress, but never removed the property ; the plaintiff had free use of the chattel and it was finally restored to him before suit brought. The owner thereupon brought trespass ; it was held that the action would fie. Applying this principle of reparation in Shipwick v. Blanchard (6 Term, 289) where plaintiff paid 40s. to relieve property from unlawful distress—held, to be a conversion, although the property was not removed, and the defendant liable for the amount. In Baldwin v. Cole (6 Mod. 212), plaintiff, a workman, demanded his tools of defendant, surveyor of work in the Queen’s yard, which was refused, but subsequently tendered. Held, “ if the plaintiff had received them upon the tender, action, notwithstanding, would have lain upon the former conversion, and the having of the goods after would go only in mitigation of the damages.” And in Keene v. Dilke (4 Exch. 388), a sheriff unlawfully levied upon, but did not remove, plaintiff’s property ; another trespasser took the goods— held, that the sheriff was hable for the amount necessarily paid to the second wrongdoer in order to get back the goods.
    
      Sedgwick Meas. Dam. 360, 410, 4th ed., lays down the rule that acceptance of the goods does not bar the action. Nothing but a release, or satisfaction, constitutes such a bar. But acceptance may be given in mitigation of damages so as to limit the recovery to the actual loss sustained by the owner. This is said as to common carriers, but the cases show that the rule is not limited to them, being a rule of general application (Scoville v. Griffiths, 12 N. Y. 509 ; Laurent v. Vaughan, 30 Vt. [Shaw] 90 ; Waite v. Gilbert, 10 Cush. 177 ; Kent v. H. R. R., 22 Barb. 274 ; Sisson v. Cleveland T. R. R., 14 Mich. 489). ,
    “ Where a carrier from plain violation of duty omits to transport merchandise beyond a reasonable time, and its market value falls in the meantime, the true rule of damages, both upon principle and authority, is the difference in its value at the time and place it ought to have been delivered, and the time of its actual delivery (Ward v. N. Y. Central R. R., 47 N. Y. 29).
    Acceptance after default is not a waiver of the claim (Barber v. Rose, 5 Hill, 76 ; Ruff v. Rinaldo, 55 N. Y. 664; Bowman v. Teall, 23 Wend. 306).
    Beparation in this case is the depreciation in value of the stock (Hunter v. Wetzell, 84 N. Y. 549 ; 38 Am. 544 ; Allen v. Fox, 51 N. Y. 562 ; Bristol v. Burt, 7 John. 254 ; Barrow v. Arnaud, 8 Q. B. 595 ; 10 Jur. 319 ; Williams v. Archer, 5 C. B. 518; Mayne Damages, § 525 ; see also Reynolds v. Shuler, 5 Cow. 325).
    
      The rale of damages applicable to this case is this : To the market price on day of demand add the interest to the day of delivery ; from that deduct the value of stock delivered on the day of delivery, and the amount, with interest to date, is the proper verdict which the jury should give.
    
      Sullivan & Cromwell, for appellant.
    I. The action was not for unlawful conversion, but expressly for alleged loss of value between the date of alleged demand, and admitted delivery and acceptance of the stock. There is no pretense of special damages, as, for instance, a contract to sell the certificate in question of which defendant had knowledge.
    II. Plaintiff having once been refused, and afterwards requesting the stock and accepting it, unconditionally, as far as the case shows, waived all claim for damages except loss of interest on the value.
    III. Even if this action were for conversion and the conversion were not waived by after-acceptance, the rule of damages would not warrant the admission of the testimony offered. If plaintiff wanted the stock and intended to treat defendant’s first alleged refusal to deliver, as a notice of conversion, he must have replaced the stock by purchase elsewhere, “within a reasonable time,” in order to make a, claim for general damages (Baker v. Drake, 53 N. Y. 271). What is a reasonable time differs according to circumstances. It is not “reasonable ” to wait almost three months, from September 24 to December 17. In Colt v. Owens (13 Week. Dig. 40), held, that thirty days within which plaintiff might have regained the stock in the market without loss was the reasonable time. In Burbridge v. Anthony (Daily Reg. May 4,1880), held, that ten days was the reasonable time. There was no offer to prove, in the present case, that at any time after Flagler’s alleged refusal to deliver the stock, the plaintiff could not have purchased the same amount of stock in the market at a lower price than the alleged market price on September 24, 1881.
   Per Curiam.

This case seems to have been regarded upon the trial, as one of conversion, founded upon the refusal of the defendant, upon demand, to deliver the shares of stock.

The learned judge speaks of it, as a “wrongful refusal.” The complaint simply states the facts, out of which the defendant’s obligation' to deliver the shares arose, and alleges that without just cause, the defendant, although the shares were demanded, refused to deliver. The conversion, if any, arose, therefore, upon the demand and refusal, and was constructive and not actual. The defendant, however, afterward and before suit brought, changed his mind, and tendered the shares, and they were received.

The plaintiff offered to prove on the trial, that subsequent to his demand for the shares, and before their delivery, they had fallen in price. This offer was refused, and an exception was taken.

The judge in the end charged the jury, that the measure of damages was the interest on the value of the shares, from the day of the refusal to deliver, when requested, up to the day of the actual delivery, and fixed the amount.

These rulings give rise to the only question involved in the plaintiff’s appeal. We think that the exclusion of the evidence offered, and the rule of damages laid down by the judge was erroneous, in any light in which the action may be viewed, whether it be considered as one on contract, or for a conversion.

As one upon contract, the amount of the damages, was not one of law, but of fact, and included the loss which the plaintiff had sustained by the breach. That would be the difference between the value of the stock on the day of the demand and refusal, and the value at the time the same was actually delivered, to be computed by the jury.

It is suggested that the plaintiff, after the refusal, could have purchased or sold, in the meantime. That is speculative. He was not bound to buy other shares, and he had none to sell, owing to the defendant’s refusal.

Regarded as an action for a conversion, the defendant, notwithstanding his refusal at first, could afterwards, as he did, deliver the shares, and such subsequent delivery, under the cases to which our attention was called upon the argument, might be taken in mitigation of damages.

Judgment reversed, and new trial ordered, with costs to abide the event.  