also had occasion to call attention to cases bearing on this point, in which it has been held, that the fact of the plaintiff being indemnified by charity or otherwise, cannot be set up by a wrong-doer in diminution of the amount which he is liable to pay. (b) In closing this branch of our subject, it ought to be observed, that while, where circumstances of aggravation are [472] proved, the jury are the necessary as well as the rightful judges of the amount of relief, on the other hand, where no such facts are presented, too much care cannot be taken to apply settled rules to the subject of compensation. It can make no difference whether the action be one nominally ex contractu or ex delicto, whether for the breach of a contract or the violation of a right; in either case, if no evil motive be imputed, the amount of compensation is as much a matter of law as the right itself, and can, with no greater safety, be submitted to the vague and fluctuating discretion of a jury. (c) We shall, in discussing the cases which arise under the present branch of our subject, first consider those where, though the proceeding be nominally in tort, no circumstance of aggravation is proved, and where the law undertakes to apply a fixed measure of compensation. (b) Vide ante, 36, (c) Vide post, Chap. XXII. In an action on the case for fraud in the sale of personal property, it is said to be the well settled doctrine in Kentucky, that vindictive damages cannot be given. Singleton's Adm'r v. Kennedy & Co., 9 Ben Monroe, 222. And the court considered that they could not be given in like cases in Louisiana. But they may be given in Kentucky, where a trespass is committed willfully and in a highhanded manner. Jennings v. Maddox, 8 B. Monroe, 430. The precise demarkation of the cases in which exemplary or vindictive dam ages are allowed, has not yet been made ! 1 CHAPTER XIX. THE RULE OF DAMAGES IN ACTIONS BROUGHT FOR THE MISAPPROPRIATION OR CONVERSION OF PERSONAL PROPERTY— THE COMMON-LAW ACTION OF TROVER. The general Rule is the value of the property converted-Special Damages, whether recoverable-Value, whether estimated at the time of conversion or at time of trial-Where plaintiff claims a special property, or by virtue of a lien-Where the defendant has bestowed labor on the property-In regard to Choses in Action-Interest-Mitigation of Damages. IN treating of the subject of torts we shall first discuss those cases, which, being unattended by any circumstances of aggravation, are regarded entirely as under the control of the court, and in which a fixed rule of damages is maintained as matter of law. These cases are treated, for our present purpose, as contracts, and compensation is awarded on fixed legal principles. Where, on the other hand, the amount of relief is submitted to the discretion of the jury, few questions present themselves as to the measure of damages. Trover is the form of action prescribed by the common law, where damages are demanded for specific personal property which has been wrongfully appropriated, or in more technical language, converted to the use of any other than its rightful owner. It is often brought at the option of the plaintiff in cases where assumpsit, and in others where trespass or replevin, would lie. (d) The consequences flowing from the election of assumpsit are well stated in the language of Lord C. J. Ellenborough. "In bringing an action for money had and received, instead of trover, the (d) Barker v. Cory, 15 Ohio, 9. plaintiff does no more than waive any complaint with a view to damages for the tortious act by which the goods were converted into money, and takes to the net proceeds of the sale as the [474] value of the goods, subject of course to all the consequences of considering the demand in question as a debt, and amongst others to that of the defendants' having a right of set-off, if they should happen to have any counter-demand against the plaintiff." (e) But where trover is adopted, the general proposition may be laid down, that the value of the property converted is the measure of damages. (1) This, however, is subject to many qualifica (e) Hunter v. Prinsep, 10 East, 378, 391. Greenleaf on Evidence, vol. ii., 218. Vide ante, 38, in notes. (1) Justice v. Mendell, 14 B. Monr., 12; Hildebrant v. Brewer, 6 Tex., 45; Carter v. Feland, 17 Mo., 383; The value, with interest, was held the rule in Polk v. Allen, 19 Mo., 467; Ryburn v. Pryor, 14 Barb. (Ark.), 505; Cutter v. Fanning, 2 Iowa, 580; Hayden v. Bartlett, 35 Me., 203. Thus in an action of trover for the conversion of timber, where the defendant's possession has been uninterrupted, the measure of damages is its value when first separated from the freehold. Moody v. Whitney, 38 Me, 174. But compare Chipman v. Hibberd (6 Cal., 162), where it is held that in an action for cutting down trees growing on land the property of the plaintiff, the measure of damages is not the value of the trees as firewood, &c., but the injury done to the land by the destruction of them. So, in England, where the plaintiffs contracted with R. to build a ship for them, and made advances from time to time in respect of her; and R. gave them, as security for the advances, a bill of sale of the ship, which stated that he (R.) thereby did sell, transfer, &c., to the plaintiffs a certain ship in progress of building (describing her), to have and to hold the ship, &c., to the plaintiffs forever, when she should be completed; the defendants having converted the vessel before she was finished, and having finished her, the plaintiffs were held entitled to recover as damages in trover, the value of the vessel at the time of her conversion, but not her value at a subsequent time, nor as special damage the value of freight which the plaintiffs might have earned with her if R. had completed her and delivered her to them. Read v. Fairbanks, 24 Eng. L. & E., 220. S. C., 13 C. B., 692. Compare Wood v. Bell, 6 Ellis & B., 355; reversing in part, S. C., 5 Ib., 772. It seems to have been held by the New York Court of Appeals, that the value of foreign goods in an action of trover should be ascertained by the custom-house valuation of them in this country, if made nearly at the time of the conversion. Caffe v. Bertrand, 1 How. App. Cas., 224. The rule that plaintiff recovers the value with interest does not apply, however, it is said, where from a limited or restricted production of the article, the price is sub tions. It is proper, perhaps, before entering on the general discussion, to take notice of an exception to which is applied the term of pretium affectionis. It has been intimated in many cases, though perhaps never as yet directly decided, that where the property in question had for some particular reason a peculiar value to its owner, as a picture to a relative, a manuscript to a descendant, and so in many other cases that may be supposed, it would be proper for the jury instead of confining themselves to the rigid estimate of value, of which, perhaps, there might be no criterion, to give an enhanced remuneration for the peculiar estimate in which the true owner held the article in question, as a pretium affectionis. It is very difficult to reduce remuneration of this kind to principle or settled rule. In cases of intentional wrong the rule of vindictive damages covers the case. But when such is not the case, how far should a plaintiff be remunerated, for what is in truth an injury to his feelings? As a general rule, injuries to the feelings of the plaintiff are not subjects of legal recompense, except when the wrong is malicious. To authorize such a recovery, it would seem to be essential at least that the defendant should have been apprised of the peculiar value set upon the property by the owner, and that he should have disregarded his feelings. And then again, to what extent shall the jury go in their endeavor to appreciate the various motives that may enter into the plaintiff's estimate of the article? There would seem to be great intrinsic difficulty in permitting recovery on these grounds. In Mississippi the difficulty has been partially got over in regard to slaves, by permitting the owner to seek equitable relief, and to claim a specific return of the property, where at common law he would have been limi- [475] ted to an action for damages. (f) We now come to the examination of the rules which govern damages in the common-law action of trover, or in actions where redress is demanded for the wrongful conversion of specific articles of personal property. In one of the earliest cases on the subject of damages in trover, (g) where the action was brought for a jewel, several of (f) Butler v. Hicks, 11 Sm. & Marsh., 78. Hull v. Clark, 14 Sm. & Marsh., 187. (g) Amory v. Delamirie, 1 Strange, 505. ject to frequent and considerable fluctuations. The Bank of Montgomery v. Reese, 26 Penn. St., 143. the trade being examined to prove what a jewel of the first water, of the size in question, would be worth, the chief justice of the King's Bench directed the jury, that unless the defendant produced the jewel and showed it not to be of the first water, "they should presume the strongest against him, and make the value of the best jewels the measure of their damages;" which they did. ' "The general rule in trover," said Patterson, J., (h) "is that the damages are measured by the value of the thing taken. I never knew of any attempt to reduce the damages by showing the manner in which the goods were seized." And in this case, it being specially pleaded that the defendant did not convert the goods claimed, a horse and cart, evidence was refused to show that they did not belong to the plaintiff. (¿) It has, however, been intimated that special damages may be recovered in this action for the detention of the property, over and above its value. It was suggested (j) by Parke, B., at nisi prius, that the plaintiff could recover special damages if laid in the declaration; as in trover for the conversion of a horse, that the plaintiff could recover for money paid for the hire of other horses. And it has been so since decided by the Queen's Bench, in trover brought by a carpenter for his tools; the declaration containing an allegation, that by reason of the conversion the plaintiff was prevented from working at his trade. (k) In this country, however, it seems doubtful; the doubt resulting [476] from the technical form of the action, as well as from the question as to remoteness or consequentiality of damages. (1) The general rule, making the value of the property the mea (h) Finch v. Blount,7 Car.& Payne,478. (i) "The value of the goods which have not been returned," says Patterson, J., in Cook v. Hartle, 8 Car. & Payne, 568," is the proper measure of damages." (j) Davis v. Oswell, 7 Car. & Payne, 804. (k) Bodley v. Reynolds, 21 April, 1846, 8 Q. B., 779. See, also, Moon v. Raphael, 2 Bing. N. C., 310, an action of trover, in which Tindal, C. J., said, "The injury of which the plaintiffs complain not being a damage necessarily consequent on the wrongful conversion of the goods, if it could in any shape fall within the remedy of an action of trover, ought at least to have formed the subject of a special allegation." (4) See Brizsee v. Maybee, 21 Wend., 144; and in Pennsylvania, see Farmers' Bank. Mackie, 2 Barr, State R., 318; Starkie Evid., P. 2, 1165. Art. Trover. In Stevens v. Low, 2 Hill, 132, where goods having been sold at an agreed price, to be paid in notes, and delivered conditionally, and the condition being broken, trover was brought for the goods, the court said that if assumpsit had been brought, the plaintiff would have been entitled to the agreed value; but that in trover the value and interest was the true measure, and that the defendant was at liberty to show that the value of the property was much less than the agreed price. And this is in accordance with the analogous cases brought on implied or express warranties of chattels, |