by setting up the facts in his answer, and tendering payment of nominal damages and costs, as hereinbefore suggested. The judgment of the Circuit Court is affirmed.

318. SUTTON v. GREAT NORTHERN RAILWAY COMPANY SUPREME COURT OF MINNESOTA. 1906

99 Minn. 376, 109 N. W. 815

APPEAL from District Court, Marshall County; Andrew Grindeland, Judge.

Action by John J. Sutton against the Great Northern Railway Company. Verdict for plaintiff. From an order denying judgment notwithstanding the verdict or a new trial, defendant appeals. Affirmed. J. W. Mason and Robert A. Hastings, for appellant.

John J. Sutton, for respondent.

JAGGARD, J. The plaintiff and respondent shipped certain property, including horses and mules, as emigrant movables and stock from a point in Wisconsin, over the Chicago, St. Paul, Minneapolis & Omaha Railway Company, through the Minnesota Transfer, destined for Argyle, Minn., at an agreed rate which plaintiff paid. The property arrived at the Minnesota Transfer and was thence reshipped to its destination, over the Great Northern Railway Company, the defendant and appellant. Before it was so finally transported, the defendant wired its agent at Argyle to "locate" the plaintiff and advise him that it would forward his car containing five horses, four mules, etc., at emigrant rates. The plaintiff asked that the shipment be made at once. On August 19th, the defendant telegraphed: ". . . Shipment will be forwarded to-day." When the goods and stock reached Argyle they were not delivered to plaintiff on demand. He was informed by the local agent that, because of error in the original shipment as emigrant movables, there were $77.15 additional charges under proper classification, which would have to be paid before the property would be delivered. Plaintiff declined to pay these charges. There was testimony that at this time the agent told the plaintiff that, if he would show a receipt for prepaid freight on the property, the agent would deliver it to him free. Other testimony contradicted this. The live stock was thereupon placed in a livery stable at Argyle. This was on August 21st. On August 23d, plaintiff was notified that his stock was at a livery stable in Argyle, and at his expense, and that the railroad company had nothing further to do in the matter. Plaintiff brought this action in conversion. The jury returned a verdict for $1,435.10. From an order denying defendant's motion in the alternative for judgment notwithstanding the verdict or a new trial, defendant took this appeal.

1. The first point made upon appeai is that the testimony upon trial

did not show, as a matter of law, any conversion by defendant, as the trial Court in its charge erroneously assumed; that testimony tended to show that, upon demand by plaintiff, the refusal of the defendant to deliver was not absolute. The rule of law is well settled that, while a demand in an action of trover must be unconditional, the refusal to abide by the conditions of special property does not operate as a conversion where a reasonable qualification is annexed to that refusal. Solomon v. Dawes, 1 Esp. 83; Green v. Dunn, 3 Camp. 215, note; Gunton v. Nurse, 2 Brod. & B. 447; Alexander v. Southey, 5 Barn. & Ald. 247; Mount v. Derick, 5 Hill. 455; Blankenship v. Berry, 28 Tex. 448; Bolling v. Kirby, 90 Ala. 215, 7 South. 914, 24 Am. St. Rep. 789. It is ordinarily, however, for the jury, under proper instructions from the Court, to pass upon the existence of the qualification and its resaonableness. McCormick v. Pennsylvania Cent. R. Co. 49 N. Y. 303 (et vide 80 N. Y. 353); Alexander v. Southey, 5 Barn. & Ald. 247; Ingalls v. Bulkley, 15 Ill, 224; Burroughs v. Bayne, 5 Hurl. & N. 296; Connah v. Hale, 23 Wend. 462. The most favorable construction of facts in this case, under these rules of law, is that the defendant was entitled to have had submitted to the jury the facts as to the qualification. No request to that end was made. On the contrary the case was tried on the theory of an unconditional tender. The failure of the Court to submit the issues was not raised with sufficient definiteness either in the defendant's motion after verdict or by assignment of error in this Court. In view of this state of the record and of a number of other considerations, upon which it is unnecessary to here enlarge, we conclude that there was no reversible error in the assumption of the trial Court that there had been a conversion so far as this point is concerned.

2. The second point made by the appeal was that, if there were a conversion at all, it was merely a technical one with no intent on the part of the appellant to make any claim to the property, except to assert a supposed lien; that shortly afterwards it unconditionally, tendered to the respondent the property, unchanged and undamaged, and that, in view of these facts, the Court erred in treating the value of the property as the measure of damages. This view of the law accords with both reason and authority. There are cases of willful or substantial conversion, as distinguished from cases of merely technical conversion. Whenever there is an unauthorized act which deprives the owner of his property permanently or for an indefinite time, there is a conversion. The law must afford a remedy to the person entitled to the immediate possession of the property. Trover is an appropriate and historical remedy. The unauthorized act, however, may be of such a character that the action of trover amounts to little more than a vindication of the right of possession. In ordinary cases, the measure of damages is the familiar one - the value of the property at the time of the unauthorized act with interest. In cases of merely technical conversion, where the

property was returned in the same condition as before the unauthorized act, not only when the owner voluntarily received back the goods, but also when he took them back against his will, the plaintiff will be entitled to only nominal damages and costs. To award more would be to exceed compensation under circumstances not justifying any other measure of damages; to award less would be to justify a wrong. "A conversion cannot be purged." Lord Bramwell in Hiort v. Railway Co., 4 Exch. Div. 188, 195; Lord Thesiger, p. 197; and see Warder v. Baldwin, 51 Wis. 450, 459, 8 N. W. 257; Churchill v. Welsh, 47 Wis. 39, 1. N. W. 398;,Farr v. Bank, 87 Wis. 223, 58 N. W. 377, 41 Am. St. Rep. 40; Bigelow Company v. Heintze, 53 N. J. Law, 69, 21 Atl. 109; Delano v. Curtis, 89 Mass. 470, 475; Pollock on Torts, *p. 296 and *p. 298. And it may be conceded in this case that, if the owner of a special property immediately or within a reasonable time after a refusal to deliver, due to a bona fide mistake, unconditionally tenders, to the person entitled to immediate possession, the goods uninjured, unchanged, and without deterioration, the damages may be mitigated or reduced to a nominal sum.

Defendant's difficulty is to be found, not in the law upon which he relies, but in the facts to which he seeks to apply it. The tender in this case was not absolute. It imposed upon plaintiff the search of at least two livery stables, shown to have been in the town of Argyle; he was not required by law to make that search. It involved the payment of expense there contracted; he was not required by law to defray that charge occasioned by defendant's misconduct. The tender was not immediate; the stock was withheld from its rightful owner and possessor from the 21st to the 23d day of August. The trial Court might have held that this retention of stock for that length of time at that period of the year under the circumstances set forth in this record was unreasonable as a matter of law. No request was made to submit to the jury any issue concerning the reasonableness of that time, nor is any failure of the Court in this respect properly made the object of assignments of error. The tender upon which defendant relies did not, therefore, constitute the complete reparation of defendant's wrong, which is essential to such a plea in mitigation of damages. Moreover, in view of the actual course of trial and especially of the remarks of counsel for defendant after the testimony was closed, and before the charge to the jury, the defendant is in no position to complain of the actual charge of the Court, either as to tender or as to the measure of damages adopted by the Court.

Finally, defendant contends that there was no conversion, because the contract claimed by plaintiff was void as involving an unlawful discrimination by a public carrier, in this: that not all the property was properly classified as emigrant movables. See Texas & Pac. Ry. Co. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 628, 50 L. Ed. 1011; Rev. Laws 2905, § 2015. That defence was not specifically asserted by

way of answer. The issue was not litigated upon trial, nor were the merits of such a controversy fairly presented below nor raised by the assignments of error here. Order affirmed.

319. MILLER v. HYDE

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1894.

161 Mass. 472, 37 N. E. 760

APPEAL from Superior Court, Middlesex county.

Replevin by Louisa A. Miller, administratrix of the estate of Herbert W. Miller, deceased, against E. A. Hyde for the possession of a horse. From a judgment for defendant, plaintiff appeals. Judgment set aside, and judgment for plaintiff ordered.

This is an action of replevin to recover possession of a horse known as the "Bull." The plaintiff is the widow and administratrix of the estate of Herbert W. Miller, late of Boston, Mass. The said Herbert W. Miller was by business a stable keeper, and was also interested in the trotting of horses. On or about July 12, 1890, the said Miller in his lifetime intrusted to one George Bryden, of Hartford, Conn., a blank check to be used in the purchase of the said horse known as the "Bull," and a few days thereafter the said Bryden, as the agent and for the benefit of said Miller, purchased said horse, and paid for it with money obtained on said check. Said horse was kept, in company with other horses also belonging to said Miller, in a barn rented for that purpose by said Miller in Hartford, Conn., and there remained until demanded by the plaintiff herein. The said Miller died in Boston, September 14, 1890, and in the following November the plaintiff herein was duly qualified as the administratrix of his estate in Massachusetts, and shortly thereafter, on or about the 13th day of November, 1890, she went to Hartford, and made a demand on said Bryden for said horse, but Bryden refused to deliver the horse, and claimed to own a half interest therein. The affairs of the said Miller were found to be in great confusion, and the plaintiff was without means of her own, and was harrassed by lawsuits in Boston, but in due course of time she was appointed administratrix of the estate of said Miller in Hartford County, Conn., by the Probate Court of said county, and, shortly after, his estate was declared insolvent by said Probate Court. Meantime, on or about March 31, 1891, the said Bryden sold said horse, the "Bull," as his own property, to Joseph C. Davenport, of Hartford, Conn., and Ada L. Hyde, of Brookline, Conn., for the sum of $1,500, and gave a bill of sale of said horse to the said Davenport and Hyde, and the said Davenport gave to the said Bryden his check for $1,285, which check was duly paid. In November, 1891, after her appointment as administratrix in said Hartford county, the plaintiff, being a

The

stranger in Connecticut, and being unable to furnish a bond in Connecticut sufficient to enable her to replevin said horse, brought an action for the conversion of said horse against the said Bryden and Joseph C. Davenport, E. A. Hyde, and John Shillinglaw, the horse being then in the possession of said three last-named defendants, and said horse was attached in said suit. Said action was brought to trial in the Court of Common Pleas of Hartford county at the March term of 1892, and the Court found for plaintiff as against the defendant Byden in the sum of $1,000, fixing the date of conversion at the time of the demand on Bryden in November, 1890, and in favor of the defendants Hyde, Davenport, and Shillinglaw on the ground that said three last-named defendants did not appear to have anything to do with said horse until some months after said conversion by said Bryden. defendant Bryden was worthless and without property. Execution against him was taken out on said judgment by the said plaintiff, and placed in the hands of James R. Graham, a deputy sheriff for said Hartford county. After demand on said execution on said Bryden by said sheriff, which demand was not complied with, the said sheriff levied said execution by direction of the plaintiff's attorney on the said horse, the "Bull," and proceeded to advertise said horse for sale at public auction. The said sheriff was in the act of selling said horse horse on said execution, but before it was sold it was taken from him by John M. Foote, Jr., a deputy sheriff of said county, under a writ of replevin in favor of the said Joseph C. Davenport, which suit of replevin at the time of the bringing of this suit was still pending in said Hartford county, Conn. The said Davenport gave bond in said replevin suit, and took possession of the said horse, the "Bull," and later, in August, 1892, intrusted him to the said E. A. Hyde, who brought the horse to Massachusetts, and entered it in his own name for the races at Mystic Park, in Medford, Mass., and, while said horse was at said Mystic Park, he was replevied by the plaintiff herein under a replevin writ directed to the said Hyde. The judgment entered against said Bryden in favor of the plaintiff as aforesaid has not been satisfied.

Elder, Wait & Whitman, for plaintiff. J. H. Morrison, for defendant. BARKER, J. The plaintiff may maintain replevin if she is the owner of the horse, and if she is not estopped from asserting her ownership against the defendant. As administratrix of her husband's estate, she was the owner when she brought trover in Connecticut against Bryden, the bailee who had wrongfully usurped dominion and sold and delivered the horse to Davenport. As the horse was in Connecticut and the action of trover was in the Courts of that State, the effect of the suit upon her title would be determined by the law of the forum. But as the law of Connecticut is not stated as an agreed fact, we must apply our own.

Whether a plaintiff's title to the chattel is transferred upon the entry in his favor of judgment in trover has not been decided by this Court. Assuming that, in early times, title to the chattel was transferred to