
    PENFIELD v. SAGE.
    (Supreme Court, General Term, Fourth Department.
    September, 1893.)
    1. Appeal —Findings of Referee.
    Where the evidence tends to support the finding of a referee, the general term will accept the referee’s conclusions upon the facts.
    2. Trover and Conversion—Measure of Damages.
    Where logs are converted, sawed into lumber, and drawn to market by defendant, but the conversion is not willful, or an intended defiance of plaintiff’s title, the measure of damages is the value of the lumber at the mill, instead of the value enhanced by the expense of drawing it to market.
    3. Evidence—-Opinions.
    It was proper to permit a witness to testify that it was worth four dollars per thousand to draw the lumber from a mill to market, and that it was worth three dollars per thousand to saw such lumber.
    Appeal from judgment on report of referee.
    Action by Thomas D. Penfield against John L. Sage, surviving partner of Ghauncey S. Sage, deceased, for the conversion of certain logs. From the judgment entered on the report of a referee, awarding plaintiff $36.85 damages, and allowing defendant as offset $150.04 costs, leaving judgment in favor of defendant for $121.19, plaintiff appeals.
    Affirmed.
    Plaintiff’s complaint averred that the defendant’s firm “took and carried away birch and maple lumber, and converted the same to their own use;” and the plaintiff “waives the tort growing out of the transaction aforesaid.” The answer contained denials of the complaint. The report of the referee awarded damages in the sum of $36.85.
    Argued before HARDIN", P. J., and MERWEN and PARKER, JJ.
    A. C. & E. C. Woodruff and William Kernan, for appellant.
    S. C. Huntington & Son, for respondent.
   HARDEST, P. J.

Barker v. Mathews, 1 Denio, 335, is an authority to the effect that the plaintiff, a judgment creditor, “cannot sustain an action against a wrongdoer [the defendant here] for taking property out of the possession of the officer.” That case was adverted to by G-ridley, J., in Harsh v. White, 3 Barb. 523, but the doctrine was not disturbed. Plaintiff’s execution upon a judgment against Burritt having been issued to the sheriff oí Oswego county, was levied on the property of and in the possession of Burritt on the 19th of March, 1888, and full notice thereof given to Burritt, the judgment debtor. The sheriff posted his notices of sale, and in pursuance thereof sold the logs lying in the yard at Burritt’s mill on the 22d of May, 1888, to the highest bidder, being the plaintiff; and whatever title the plaintiff acquired was derived under such sale, and the purchase by him under the execution. Although the logs, after the purchase thereof by the plaintiff, were cut into lumber, and hauled to Williamstown, some nine miles’ distance from the mill, which was at Bedfield, the plaintiff, in virtue of the title acquired by him, was authorized to pursue the lumber, and take possession thereof, he not having given Burritt or any one else any authority to convert the logs into lumber, or to make sale of the lumber. Salsbury v. McCoon, 3 N. Y. 379; Dudley v. Hawley, 40 Barb. 397; Hughes v. Pipe Lines, 119 N. Y. 426, 23 N. E. Rep. 1042. In March, 1888, (intermediate the levy and the sale,) Burritt entered into a contract with the defendant’s firm, whereby he agreed to sell and deliver a quantity of lumber to the firm, and in pursuance thereof he delivered a quantity to the defendant’s firm, and at the trial a question arose as to how much of the lumber arising from the logs bid off by the plaintiff was delivered to the defendant’s firm subsequent to the 22d day of May, 1888, the day of the plaintiff’s purchase. That question seems to have been sharply and resolutely litigated at rhe trial before the referee. There was a conflict in the evidence, which called upon the referee to exercise his judgment as to where the truth was to be found after considering all the evidence before him on the question. He reached the conclusion that the defendant’s firm only received 5,000 feet, derived from the logs purchased by the plaintiff at the sale after the plaintiff acquired title under the execution sale. We are asked to overturn his finding, and reference is made to quite a volume of evidence given by the plaintiff warranting a conclusion contrary to the finding of the referee; but, as there was evidence given in behalf of the defendant which tends to support the conclusion reached by the referee, we are constrained, upon giving such influence to the findings of the referee as we think they are entitled, to accept his conclusion upon the facts produced before him. Boosa v. Smith, 17 Hun, 138. In the course of the opinion delivered in that case Board-man, J., said:

“But we think it very clear that a general term cannot, in a doubtful case, upon conflicting evidence, like the one under review, assume the place of the referee, and determine from the mere reading of the evidence who has told the truth, or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise, and dangerous in its ordinary use. It.would make of a referee to try an issue simply a referee to report the testimony to this court, which, in such cases, would review nothing but the evidence, giving such a decision as, in its judgment upon the evidence, is just.”

The rule as thus stated has heen adopted, approved, and applied in numerous cases by this court. Teeter v. Teeter, (Sup.) 20 N. Y. Supp. 259, and cases cited in the opinion.

2. The referee, in awarding damages to the plaintiff, allowed the value of the lumber which he finds was converted by the defendant’s firm according to the value of the plaintiff’s interest therein at the mill in Bedfield, where the same was sawed, instead of at the value thereof enhanced by the expense of drawing to Williams-town, 9 miles’ distance from the mill; thus awarding to the plaintiff the value of the 35 birch and maple logs containing the 5,000 feet, and the referee states the value thereof to be $30, and for that sum, with the interest thereon, he awards the plaintiff damages, and a judgment therefor; and he finds that the defendant’s firm “converted the same to their own use;” and he also finds that “on Hay 22d, 1888, the said firm of S. Sage & Son had knowledge * * * of the sale, and Chauncey S. Sage, one of the members thereof, forbid the sale on that day.” The referee did not find that the conversion by the defendant’s firm was willful, and an intended defiance of plaintiff’s known title to the property. In section 503 of Sedgwick on Damages, (8th Ed., vol. 2, p. 88,) in speaking of the rule of damages, he states that the prevailing view is that, if the defendant acted in good faith, “the measure of damages is the value of the property as it was just before the defendant’s wrongdoing began.” The author then proceeds to refer to Forsyth v. Wells, 41 Pa. St. 291, 294, and in the course of the opinion in that case it is said:

“Where the defendant’s conduct, measured by the standard of ordinary morality and care, which is the standard of the law, is not chargeable with fraud, violence, or willful negligence or wrong, the value of the property taken and converted is the measure of just compensation. If raw material has, after appropriation, and without such wrong, been changed by manufacture into a new species of property,—as grain into whisky, 'grapes into-wine, furs into hats, hides into leather, or trees into lumber,—the law either refuses the action of trover for the new article, or limits the recovery to the value of the original article. Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the Teal injury done is the purpose of all remedies.”

After the quotation which we have given the author adds: “This case is generally followed.” A discussion of the rule is found in Hyde v. Cookson, 21 Barb. 92. In that case it was said:

“Where a manufacturer has expended his money and labor, in good faith, upon property, in pursuance of a contract with the owner, he cannot be regarded as a wrongdoer, or deprived of the enhanced value which he has given to the property, in an action by the owner sounding in damages.”

We think the plaintiff was not prejudiced by allowing a witness to testify that it was worth $4 per thousand to draw the lumber from Bedfiéld to Williamstown; nor by evidence that it was worth $3 per thousand “to saw such lumber in 1888.” The foregoing views .lead us to an affirmance.

Judgment affirmed, with costs. All concur.  