
    Meeks v. Simon.
    (New York Common Pleas
    General Term,
    February, 1893.)
    In an action for damages for conversion based upon larceny, where defendant is shown to have acted in good faith, the measure of damages is the market value of the property in question. If, however, plaintiff has received to his use any money on account of the value thereof, defendant has the right to offset the same in mitigation of damages.
    
    Appeal from two judgments, each rendered in favor of plaintiff in a District Court of the city of New York. The opinion states the case.
    
      George Carlton, Comstock, for defendant (appellant).
    
      Samuel Jolmson, for plaintiff (respondent).
    
      
       See Higgins v. Whiting, 24 Wend. 379.
    
   Bookstaver, J.

These actions were brought in the Tenth District Court to recover from the defendant damages for the wrongful conversion of personal property, consisting of three watches, two of them of the alleged value of forty dollars each, and the third of the alleged value of seventy dollars. On the trial it was stipulated that the decision in one cause should control in the second action, and the parties proceeded to try the two actions together.

It appeared from the evidence that the plaintiffs were in the business of selling watches, diamonds and jewelry, and in the autumn of 1891 were the owners of the property in question. On or about October twenty-fourth, a Mrs. Hawkes called upon plaintiffs and told them that she had a party by the name of Mrs. Primm who wanted a watch; thereupon they gave her one of the watches in question to be delivered to Mrs. Primm, at the same time instructing Mrs. Hawkes to have Mrs. Primm sign a certain conditional bill of sale, which was given her in blank; when signed, this conditional bill of sale was to be returned by Mrs. Hawkes. When she received the watch, instead of taking it to Mrs. Primm, she took it to the defendant’s pawnshop, where she pawned it for fifteen dollars, receiving a pawn ticket of the defendant, Mo. 74,313. The next day, or the day after, Mrs. Hawkes reported to the plaintiffs that she had delivered the watch ip question to Mrs. Primm, and gave them the printed conditional bill of sale, with the blanks filled in and a signature at the bottom purporting in words to be that of Mrs. Primm, which is as follows:

“ Mo. 660. This indenture witnesseth that I have this day rented and leased from W. F. Meeks & Co., of 9 Murray street, in the city of New York, the following goods and articles: Gold watch 479046,' for the use of which I promise to pay the sum of $4 on the day hereof, and $1 each and every week until the sum of $40 has been fully paid, when said W. F. Meeks & Co. agree to execute and deliver to me a bill of sale of said goods without further consideration ; and I agree to keep in my possession the said property in trust for the said W. F. Meeks & Co., who neither parts with, nor do I acquire any title 'thereto, until said sum shall be fully paid as aforesaid; and in case default shall be made in any of the aforesaid payments on a demand being made by the said W. F. Meeks & Co., I hereby agree to surrender and return to him the said goods, and allow him to keep and retain the money paid thereon for the use and rental thereof. In witness whereof, I have this 24th day of October, 1892, set iny hand and seal. Signature, PRIMM.
“ Residence 450 Canal street. [Seal.] ”
On the back of the lease wras indorsed the following:
“ Mo. 6607; address,-; name, Primm; remarks, watch
$40; October 24, $4; $12; $2.”

When Mrs. Hawkes delivered this lease, she paid to the plaintiff five dollars, which was indorsed in one of the blank spaces on the back of the conditional bill of sale. From time to time thereafter, she brought in further moneys, and paid them to the plaintiffs on account of the watch referred to in this paper, telling them the money so paid was paid by Mrs. Primm on account of the conditions of the contract, and each time plaintiffs credited the sum on the back of the paper against the value of the watch therein mentioned. The plaintiffs afterwards discovered that the money was not paid by Mrs. Primm, but was Mrs. Hawlces’ own-money. In this manner they received altogether on account of this watch, the sum of eighteen dollars, against its value.

It thus appears by plaintiffs’ evidence, which is.undisputed, that on the watch No. 479,046, the plaintiffs received altogether eighteen dollars, which was not at any time tendered back to any one by the plaintiffs. There is no charge in these actions of any bad faith or knowledge of the fraud upon the part of the defendant, and he is merely sued as a purchaser or pledgee of the watch, for value. In addition to this, it appeared that the cost of this watch to the plaintiffs was eighteen dollars only, exactly the sum which had been paid them for the watch by Mrs. Hawkes.

Precisely the same facts appear as to the second watch, No. 442,804, except that Mrs. Hawkes got it, alleging that it was for an Alice Primm, on the 2oth of November, 1891, and pawned it with the defendant on the same day. The third Watch was obtained under precisely the same state of facts, except that Mrs. Hawkes got it on November 6, 1891, stating it was for a Mrs. Hughes, and pawned it with the defendant on the same day. The value of this watch, as alleged in the conditional bill of sale, is seventy dollars; it cost the plaintiffs thirty-two dollars and thirty cents, and it could have been replaced by them for the same money.

It further appears that when the demand for these watches was made upon the defendant, the plaintiffs did not tender to him either the pawn tickets, or the amount defendant had advanced on the watches, or any part thereof.

If the plaintiffs have the right to maintain these actions at all, it must be upon the theory of a conversion, based upon a larceny of the watches by Mrs. Hawkes, and as against the defendant acting in good faith, they could only obtain their actual damages, that is, the market value of the watches, or what it would have cost the plaintiffs to have replaced them. Wehle v. Haviland, 69 N. Y. 448. There does not seem to be a case precisely parallel to those under consideration. Yet there are a number of cases in this state based upon the principles involved in these actions. Thus it has been held that after the conversion of the property, the title still remained in the owner, and the property can be taken from the wrongdoer upon ah execution against the owner, and sold, and the proceeds applied upon his debt, and the owner will thus have ■ the benefit of the property. In such case, the wrongdoer can set up this seizure and sale, not as an entire defense, but in mitigation of damages. Ball v. Liney, 48 N. Y. 14. Where the owner voluntarily receives the proceeds of the property wrongfully taken, or directs or assents to their application to his use, such facts may be shown in mitigation the same as the receipt or application of the identical property taken by the trespasser. Torry v. Black, 58 N. Y. 185. Hence, in these actions, the defendant had a right to offset, in mitigation of the damages of plaintiffs, the sum of money received on account of these watches by them. Thus, from the value of the first watch, to wit, eighteen dollars, should be deducted eighteen dollars; from the value of the second watch, which was eighteen dollars, should be deducted eleven dollars, the amount paid thereon; and from the value of the third watch, thirty-two dollars and thirty cents, should be deducted twenty-three dollars and thirty cents. And the justice who tried this case erred, in giving judgment for the full amount, without making those deductions.

The judgment should, therefore, be. reversed, and a new trial ordered in the court below, with costs to the appellant to abide the event, unless plaintiffs will consent to a reduction of the judgments, as before indicated.

Bisohoff, J., concurs.

Judgment accordingly.  