¶1It was found as matter of fact by the court in a trial without a jury, that the defendant was not, by the terms of the agreement, relied on by the plaintiff, and made part of the declaration, entitled to hold the plaintiff liable as indorser of the Cox note; and that the plaintiff indorsed the same through inadvertence, ignorance of the law and misdirection of the defendant. The agreement, however, provided for the assignment of the plaintiff’s right and interest in the mortgage given to secure the note in question. The court ruled that upon the evidence the defendant was liable for the conversion of the note, and that the measure of damages was the amount which the plaintiff was legally liable to pay the holder of it; namely, the amount due on the same, less the amount realized from the mortgage; and judgment was rendered accordingly.
¶2The difficulty with this ruling is, that upon'the facts disclosed there was no conversion of the note. By the terms of the agreement, the defendant was entitled to an assignment of the mortgage debt. The indorsement of the plaintiff transferred the legal title in the note to the person to whom it legally belonged. The gist of the action is the fraud of the defendant in wrongfully obtaining the unrestricted indorsement of the plaintiff, and afterwards, against his objection, negotiating the note to a holder for value without notice. The plaintiff upon his own showing could not impeach the defendant’s title to the note and mortgage, or his right to transfer that title to another. The role of damages for the conversion of a promissory note cannot be applied to such an action. Mercer v. Jones, 3 Camp. 477. 2 Greenl. Ev. § 649.
¶3The further objection is, that treating this as an action to recover damages for an alleged fraud, the plaintiff shows no damages sustained at the time his action was commenced. It was then uncertain and contingent whether he would ever be called on to pay the note. It was payable to the plaintiff or order in two years, and was dated in July, 1873, shortly before its tran» *427fer by his indorsement to the defendant. The liability of the plaintiff depended on the failure of the makers to pay and the giving of due notice to him as indorser. No payment has in fact ever been made by him. If the holder receives his pay from the makers through the mortgage security or otherwise, the plaintiff will have" suffered no actionable wrong. There will have been no concurrence of damage with fraud, within the rule on which such actions are founded. And as there has been no invasion of the plaintiff’s right, no breach of promise, and no interference with his property, there can be no recovery of even nominal damages in this action. Pasley v. Freeman, 3 T. R. 51. 2 Smith Lead. Cas. (6th Am. ed.) 157, and notes.
¶4Exceptions sustained.