
    Thomas vs. Seely.
    
      Trover: Damages.
    
    In trover for a certain number of sheep and a like number of fleeces of wool, where the property had come lawfully into defendant’s possession, but there was evidence of a subsequent wrongful conversion of the sheep, proof of the value of the wool, which had been taken from them at the last previous shearing', was perhaps admissible as bearing upon the value of the sheep; but there being- no evidence that defendant had converted such wool to his own use, or had not the same in his possession ready to deliver it to plaintiff on demand, its value could not be included in a verdict for plaintiff.
    APPEAL from tbe County Court of Dodge County.
    Trover, for twenty-three sheep of the alleged value of $150, and twenty-three fleeces of wool of the alleged value of $50, the property of the plaintiff, which, the complaint charges, was wrongfully converted by the defendant on or about November 1,1875. The plaintiff lost his sheep in October, 1874. It is not claimed that they came wrongfully to the possession of the defendant. The testimony and rulings of the court on the trial are sufficiently stated in the opinion. Terdict and judgment for the plaintiff; and the defendant appealed.
    Eor the appellant, a brief was filed by J. W. Seely, and the cause was argued orally by A. Scott Sloan.
    
    For the respondent, the cause was submitted on the brief of F. Hamilton.
    
   Lyon, J.

The plaintiff was permitted to prove the weight and value of the fleeces of wool taken from the sheep in controversy at the shearing of 1875; and the court refused to instruct the jury that, if they found for the plaintiff, they could not properly include the value of such wool in the damages assessed by them. ¥e find no testimony in the bill of exceptions showing or tending to show a conversion of the wool by the defendant. So far as appears, the defendant may yet have tbe same in bis possession, ready to deliver it to tbe plaintiff on demand, and no action can be maintained for it without proof of conversion.

The testimony of the value of tbe wool may bave been competent in tbe case as bearing upon tbe value of tbe sheep; but, in tbe absence of any proof of conversion, the jury should bave been instructed not to assess damages for tbe value of tbe wool. Tbe jury were liable to be misled by tbe refusal to give this instruction.

Other errors are assigned, but it is not deemed necessary to pass upon them. For tbe error first above mentioned, there must be another trial.

By the Court. — Judgment reversed, and new trial awarded.  