alleged value of $300. Plaintiff alleges that its ownership and right to the possession of the horse was acquired by the purchase of a mortgage on said horse, given by defendant to L. M. Hartley, together with the notes secured thereby. Defendant answered, admitting the execution of the notes and mortgage, and alleging that about August 6, 1888, before plaintiff became the owner thereof, said L. M. Hartley, through his authorized agent, for a valuable consideration, executed and delivered to defendant a complete release and discharge of said mortgage, and that subsequently said L. M. Hartley ratified said acts of C. E. Hartley. Defendant further alleges that, prior to the time plaintiff took possession of said horse under replevin, the notes secured by said mortgage had been fully paid, and that the horse was of the value of $1,800 when taken from defendant. Defendant asks judgment for the return of the horse, or for his value if not found, and for costs. . . . Upon these issues the case was tried to a jury, and a verdict returned finding that the defendant was entitled to the possession of the horse at the time he was taken under the writ herein; that he was then of the value of $1,125; and that defendant is entitled to $800 for the wrongful detention of the horse. Plaintiff's motion for a new trial being overruled, and defendant electing to take the value of the horse as found, judgment was entered against the plaintiff for $1,925. Plaintiff appeals. Affirmed.

Sawyer & Taft, for appellant.

Lewis & Holmes, for appellee.

GIVEN, J. 1. In the fall of 1887, L. M. Hartley, through C. E. Hartley, sold the horse Chere to defendant, and, in payment, took his three notes for $600 each, dated October 21, 1887, payable June 1, 1889, 1890 and 1891, respectively, secured by a mortgage on said horse.. The defence of payment was withdrawn from the jury, as will be seen hereafter, thereby leaving only the questions whether the chattel mortgage had been canceled, the value of the horse, and the amount of damages.

5. The Court admitted evidence, over plaintiff's objections, tending to show the value of the use of the horse, and after instructing the jury that, if it found that the defendant was entitled to possession of the property, it should determine the reasonable market value thereof, instructed as follows: "You also will assess and determine the damage which defendant has sustained, if any, by the horse being wrongfully taken under the writ of replevin, and this damage is to be estimated by ascertaining from the evidence the net profits to plaintiff if he had been allowed to have possession of the horse from the time he was taken under the writ until the present time." Plaintiff concedes that, if defendant was compelled to or had elected to take a return of the property, he would be entitled to recover for its use, but contends that, as defendant elected to take judgment for the value of the horse, he is not entitled to damages for the use thereof, but simply for its value, with interest. Plaintiff says in argument: "The defendant elects that it is

a good sale of the horse, and says he prefers that amount of money to the horse. Now, shall he be allowed to extort from the plaintiff $800 additional, ostensibly for the detention of the horse, which, by his act of election, he sold two years ago for $1,125, but which in reality is only for the use of the money, instead of the horse." The fault in this argument is in assuming that there are any of the elements of contract or sale in the transaction, and that, by the election, the horse became the plaintiff's from the time he took it under the writ. The relief accorded to the defendant is for a tort, and not upon contract, and the purpose of the law is to fully compensate him for all that he lost by the wrongful act. By the verdict it is determined that he was entitled to the possession and use of the horse from the time he was taken, and that the value of that use during the time the horse was wrongfully detained was $800. Clearly, the defendant lost that use by the wrongful taking and detention of the horse. The value of the use being in excess of legal interest on the value of the horse, the latter value, with interest, would not afford full compensation.

Cases are cited wherein it is held that the value of the property, with interest [only], was the measure of recovery. Such a rule would afford full compensation in instances where the use, of which the party was deprived, had no value, or its value did not exceed the interest allowed. In many cases, and especially where work animals were the subject of the controversy, a different rule has been applied. Allen v. Fox, 51 N. Y. 562; Williams v. Phelps, 16 Wis. 85; Johnson v. Bailey (Colo. Sup.) 28 Pac. 85; Farrar v. Eash, (Ind. App.) 31 N. E. 1125. Cook v. Hamilton, 67 Iowa, 394, 25 N. W. 676, fully answers this contention. In that case it is said:

"The theory upon which the provisions of the statute authorizes the recovery of damages for the detention of property is based is that, as the property is owned by the plaintiff, he is entitled to its possession and use, and ought to recover the full value of such use in damages for its detention. The right of the plaintiff to the possession continued until he abandoned it by exercising the option given him by statute to accept the money or money judgment in place of the property. As he owns the property, and was entitled to its use up to that time, he ought to recover the full value thereof in a judgment for damages."

See, also, McIntire v. Eastman, 76 Iowa, 455, 41 N. W. 162. As defendant's right to the possession and use of the horse continued up to the time he elected to take a money judgment, he certainly lost that use by the wrongful detention, and is entitled to be compensated therefor. . . .

Our conclusion upon the whole record is that the judgment of the District Court should be affirmed.

44

317. CERNAHAN v. CHRISLER

SUPREME COURT OF WISCONSIN. 1900

107 Wis. 645, 83 N. W. 778

APPEAL from Circuit Court, Chippewa County; E. W. Helms, Judge. Action by William A. Cernahan against Austin Chrisler. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought in justice court to recover for the conversion by defendant of a horse, buggy, and harness. The trial resulted in a judgment for plaintiff for six cents damages and costs. The case was appealed to the Circuit Court, and was tried and disposed of upon the justice's return of testimony. The judgment of the Court below was affirmed.

The following facts are shown by the record: Plaintiff purchased the property of Mrs. Lowe, a widow, who at his direction left it at a livery stable in the city of Eau Claire. Mrs. Lowe eloped, leaving several children. William Lowe, a brother of her deceased husband, took charge of the children. He came to Eau Claire to look up any property she may have left, and at his request the defendant, who was undersheriff, assisted him. The defendant found the property at the livery stable, and directed the persons in charge not to let any one have it. He returned soon afterwards with Mr. Lowe, and directed the livery stable keeper to deliver the property to him, and it was taken away. He acted on the supposition that it belonged to Mrs. Lowe. The following day he was informed by plaintiff that he owned the property. He replied that he had acted a little too quick in the matter, and that he would have the horse brought in the next day. After the suit had been commenced, and before trial, Lowe brought the property back to the stable, and made claim for keeping of the horse. Plaintiff declined to pay, and took the property and sent it to his farm. There are other minor circumstances shown by the record tending to support the alleged conversion, but it is deemed unnecessary to state them in detail. Defendant brings this appeal.

Wickham & Farr, for appellant.

Frawley, Bundy & Wilcox, for respondent.

BARDEEN, J. (after stating the facts). Two questions are suggested by the record: (1) Does the evidence show that defendant was guilty of a conversion of the property sued for? (2) Was the taking of the property by plaintiff pending the suit a waiver of his cause of action for conversion?

1. We will first inquire what acts of a party constitute a conversion. Perhaps as terse a definition as can be found in the books is given in Cooley, Torts (2d Ed.) 524. The learned author says:

"Any distinct act of dominion wrongfully exercised over one's property in denial of his right, or inconsistent with it, is a conversion."

It is not necessary that there should be a manual taking, or that it should be shown that he applied it to his own use. The test is, does he exercise a dominion over it in exclusion or in defiance of the plaintiff's rights? If he does, that, in law, is conversion, be it for his own or another person's use. Neither is it any defence to say that he acted as agent.

"But one who assists in a wrongful taking of goods is liable, though he acted as agent merely, for agency cannot be recognized as a protection in wrongs." Id. 529.

Neither is the motive which controlled the party available as a defence, except, in cases where exemplary damages are claimed, it may be shown in mitigation. Railroad Co. v. O'Donnell (Ohio Sup.) 32 N. E. 476, 21 L. R. A. 117; Tobin v. Deal, 60 Wis. 87, 18 N. W. 634. In view of these rules, it seems entirely unnecessary to discuss the evidence. The defendant clearly exercised dominion over the plaintiff's property in defiance of his rights. It does not serve to excuse him that he was ignorant of plaintiff's title, or supposed title was in Mrs. Lowe, or that he was acting in the interest of Mr. Lowe. We say, therefore, that there is evidence to support the plaintiff's cause of action.

2. After this suit was commenced the plaintiff took possession of the property, and it is now claimed by defendant that he waived his right to further prosecute his action. We are referred to Collins v. Lowry, 78 Wis. 329, 47 N. W. 612, as an authority sustaining that proposition. This was an action for the conversion of certain shares of stock. Pending the action the defendant brought such shares into Court and tendered them to plaintiff. At the trial plaintiff announced his readiness to accept the stock and thereupon introduced the stock certificate in evidence. He claimed also the right to recover damages for his time, trouble, and expense in attempting to secure a return of the stock. The Court directed a verdict for nominal damages. The recovery being less than $50, judgment for costs was entered for defendant. In this Court the plaintiff insisted that he was entitled to recover for his expenses, etc. In denying a recovery under the circumstances, the following language was used:

"The theory of the case is that the defendant is only answerable for the value of the property, and that he or his vendee or transferee is to be regarded as the owner. Such being the nature of the action, a verdict for the value of the property converted necessarily covers and includes the damages for such conversion, and the acceptance by the plaintiff of the thing converted necessarily covers and includes its value, and hence such acceptance extinguishes the alleged cause of action for such value. In other words, the plaintiff, pending such action, cannot waive the alleged tortious conversion by taking back the property, and at the same time continue the action and recover the full or partial value of the thing converted, not even to recover costs."

It will be observed that no cases are cited to sustain this proposition. It is true that in actions for conversion of property the measure of

damages is generally the value of the property at the time and place of the conversion, with interest; but, when the circumstances show special damage over and above the value of the property, the almost universal current of authority is that such damage may be recovered in such action. This rule was recognized in Churchill v. Welsh, 47 Wis. 39, 1 N. W. 398, is incidentally referred to in Ingram v. Rankin, 47 Wis. 406, 2 N. W. 755, and is expressly stated in Parroski v. Goldberg, 80 Wis. 339, 50 N. W. 191. In Churchill v, Welsh, 47 Wis. 39, 1. N. W. 398, and again in Warder v. Baldwin, 51 Wis. 450, 8 N. W. 257, this Court discussed the circumstances under which there may be a return of the property converted, in mitigation of damages, pending the suit. The conclusion arrived at was that in case of such return, and in the absence of evidence showing special damage, the recovery should be limited to nominal damages. Many other cases might be cited, but to do so would incumber the record. The rule is universal, and rests upon the ground that the return of the property does not extinguish the cause of action, but simply goes in mitigation of the damages.

It being established in this State that special damages may be recovered in actions of this kind, the infirmity of the rule stated in Collins v. Lowry becomes apparent. The theory of the case is not that “the defendant is only answerable for the value of the property." He is answerable, not only for the value of the property, but for any special damage the plaintiff has sustained. Hence a return or retaking of the property goes only to mitigate the damages, and not in bar of the action.

In the case at bar, however, no special damages are shown. In Hiort v. Railway Co., 4 Exch. Div. 188, 195, Bromwell, L. J., said: "A conversion cannot be purged, and if a defendant is guilty of conversion he must pay some damages. A return of the goods undoubtedly might be shown, to reduce the damages, in the case of conversion, not only when the owner voluntarily received back the goods, but when he took them back against his will. In an action of trover and conversion, the practice was for a defendant to apply to the Court for a stay of proceedings on a delivery up of the goods, and on payment of nominal damages and costs; but if the plaintiff refused to accept delivery, and insisted on proceeding, with his action for substantial damages, he did so at his peril, and if he failed to get substantial damages he was made to pay the costs of the action. It is clear, therefore, that on a return of the goods the plaintiff would recover, not their value, but the damages he had sustained by the wrongful act, which was called the conversion.”

The rule above suggested, when a return of the property had been had, of applying to the Court to stay or dismiss the action upon tender or payment of nominal damages and costs, was referred to and approved in Bigelow Co. v. Heintze, supra, and is one that furnishe sample protection to the defendant. It is certainly against the policy of the law to permit parties to carry on litigation when only the question of costs is involved. . . . The defendant might easily have protected himself