236
FEDERAL REPORTER.
defendant; and that, being a manufacturing establishment, it ceased to be operated without the consent of the defendant. I have already passed upon these defenses in the preceding oase, and therefore the finding will be for the plaintiff.
BRIGHTON MANUF'G
:FIRE INS. Co. OF PENNSYLVANIA.
(O£rcuit Court, N. D. num,o'ls. July 25, 1887.)
At Law. Suit to recover on a fire insl:!rance policy. Ac:;tion by the Brighton Manufacturing Company against the Fire Insurance Company of the state of Pennsylvania on a policy of insurance. ' E. W. llussell, for plaintiff. (Jary. Cody & (Jary and Fred'k Ullman, for defendant; BLODGETT, J. The facts in this case are the same as in the preceding case; and, the only, defense set up is the inpr!'ase of risk by the stoppage ()fmanufacturing, I !lave ;tlready passed upon this defense, and the finding will therefore 'be for,the plaintiff '
WESTERN LAND & CATTLE Co.v. HALL. (Oircuz't Oourt, 1.
w: D. Missouri.
January 7.1888,)
TROVER AND CoNVERSION-RETURN OF GOODS CONvERTED-EFFEcT TO BAR ACTION.
The subsequent recovery or, return of property wrongfully taken does not extinguish the right of action fO,r the original wrongful taking; it only goes to the mitigation of whatever damages might otherwise be recovered, and demurrer on that ground will not lie. It was shown that between the time of the wrongful taking of certain cattle and their return, they had depreciated in value in the sum of $3,000; and further that plaintiff was compelled to pay bills, being necessary expenses in recovering the same, $2,500. Held, both these items were proper elements in the measure of plalDtiff's damages.
2.
BAME-DAMAGES-DEPRECIATION IN VALUE-EXPENSES OF RECOVERY.
At Law. Action in trover. This was an aC,tion in trover pyplaintiff, the Western Land & Cattle Company, against Simeon F. Hall, for the conversion of certain cattle. The declaration averred in substance that plaintiff was the owner of a herd of cattle valued at $15,000, and that, on or about December 27, 1884, the defendant wrongfully took and carried away 300 head thereof, with intent to convert the same to his own use. There was no prayer for the recovery of the market value of the property ,but the declaration stated that plaintiff, in recovering and attempting to recover the cattle, was compelled to pay freight, feeding, and other charges thereon to the amount of$2,OOO; that it had been compelled to pay traveling and other of its officers in the sum of 8500; that it had been compelled
WESTERN .LAND&: CATTLE CO.
'II.
HALL.
237
to employ legal counsel in and about the reclamation of said cattle, and to carryon suits in that behalf, at an expense of $600; that the cattle so taken when recovered had become depreciated in value by reason of such unlawful taking in the amount ·of $13,000. For all such damages a judgment was asked in the sum of $6,000. There was a demurrer on the general ground that the declaration did not state facts entitling plaintiff to recover. Prank Titus, for plaintiff. Warner & Dean, for defendant. THAYER, J., (aft{N' stating thefacts as above.) The demurrer being general, I am ,not specially advised of the objections to the petition intended to be urged, but I assume that the qemurrerw'as designed to question the plaintiff's right to recover such darrniges as are claimed in the petition. The compll!-int shows, however, that the defendant wrongfully and ulawfully took and carried away certain cattle belonging to the plaintiff with intent to convert them to his own use., Inferentially the com,: plaint also shows that the plaintiff ultimately recovered the cattle; such recovery .ofthe propeJ:ty does not operate, however., toextinguish the right of action for the.originaluDlawful taking. At most the return of the prOPerty merely mitigates the damages that would otherwise be recoverable, so that, iuany event, plaintiff has a right of if for nothing nlore than nominal damages, and a general demurrer will not lie, but must be overruled. Sparks v. Purdy, 11 Mo. 220; Ewing v. Blount, 20 Ala. 694. I would not be understood as intimating by the last remark that, according to the allegations of this petition, the plaintiff can only recover nominal damages; on the contrary, I think the petition shows that it is entitled to substantial damages, if the proof supports the averments. When property has been unlawfully converted, but has been regained by the trueowner,the measure of damage has in some. cases been held to be the market value of the same at the time of conversion, less the market value thereof at the time of the return. Lucas v. TrumbuU, 15 Gray I 306; Ewing v. Blount, 20 Ala. 694; Rank v. Rank, 5 Pa. St. 211. The petition in this case that between the time of the taking and turn of the cattle in question they in value in the sum of $3,000. This item would seem to be. a proper element of damage. Furthermore, the rule is that a person whose property has been eOnverted, and is afterwards regained, is entitled to,recover for, time sarily spent, and other reasonable outlays incurred, in recovering i.t. Vide Bank v. Leavitt, 17 Pick. 1; Ewing v. Blount, supra; McDonaldv. North, 47 Barb. 530; Keenev. Dilke, 4 Exch. 388; Hurlburtv.Green, 41 Vt. 490; Baldwin v; Porter, 12 COIID. 473. Now, in the present case the petition shows that plaintiff, for the purpose of regaining its cattle after they had been wrongfully taken, was compelled to pay bills for freight and feeding of the cattle, also certain traveling expenses of its officers, said to amount in the aggregate to $2,500. These expenses lessened the value of the eattle ,when recovered; they accordingly form one of the elements to be considered in estimating. the actual loss occasioned
238
FEDERAL, REPORTER.
by,.theconversloD; {or."after all, in thiselll.ss of cases. it is the actualloss that is recoverablE:!. The wrong-doer is to be cha.rged I in the first instance, with the· property when, :and ,where converted; ,from that should be deducted the value of the less such reasonable expenses as were incurred in recovering it. Up,on .the whole I have no doubt that the demurrer is without merit, and I accordingly overrule it.
WABASH,
Sir.L.& P.Ry. Cd; (Oirc'lJit (JOU'I't. E. D.
t1.
(SHORT. Intervenor.)
,TRusT Co.
OF
NEW
YORK:,
E.' D;])'ecember 28, 1887'1
JUDGllBNT-EFFECT Oll'"-RBS INTER
On' petition of in1ervention for the ,a]lowance ,of· an equitable, lien upon property in the hands of receivers, prior iJ:1. right to claims of mortgage bondholders, petitioner,offered no testimony aave a judgment obtained,by consent in a state court against the' mortgagor only, on the same claim which formed the basis,of the intervention.. Held, that as the receivers were not parties to the proceeding in the statl3 court the judgment was not admissible in evidence as a&,ainst them, in so far as they represented mortgage bondholders, and that It was insufficien,t proof to establish a l1en against the mortgaged property' superior in right to $13 claims of mortgage bondholders 'i
On Exception,to Master's Jas. Dixtm, for intervenor. Priest &; Graver, for receivers. THAYER, I., (orally.) The ,master's report on the intervening peti.tion of James Short has been excepted to by the intervenor, chiefly on the ground that the master erred in admitting certain testimony. 'This claim was once before filed in this court, with a view of having the same allowed as anequitable charge or lien upon property lately in possession of thereceivers,Messrs. Humphreys and Tutt, and a hearing was had on the same before the master. After an an ad verse report on the claim had been lodged in the clerk's office, but before any action thereon had been taken by the court, the intervenor was permitted to dismiss his petition without prejudice; Thereupon the intervenor brought suit on the claim againstthe Wabash, & Pacific Railroad, in the state circuitcourt, and by consent of parties a judgmentin the sum of'$8,OOO appears to: have been entered thereon in favor of the intervenor, and against the railway company, in Februarylast. <As the receivers· of this court were not made parties to the suit, arid: as the sole purpose of that suit appears to have ,been to obtain an ordinary judgmentagaimit ,the railway' company alone,'no leave was asked of this court to prosecute the action in the state court; .In June last, after judgment was obtained in the statecoun, a'second interve1l'ing'petitionwasfiled in this court, the
WABASH, ST. L. & P. RY. CO.V.CE11'iTRAL 'mUST co.
239
object o(the interve11br being,as before, to have his claim allowed as an equitable lien upon property in possession of the receivers prior in right to theclaims.of mortgage bondholders. On the hearing of the last intervening petition, the master admitted in evidence in favor of the receivers the record made on the trial before him of the first intervening claim,induding the evidende heard on the trial·of that claim. Theadmission of such testimony constitutes the chief exception to the master's report; in , fact, it is the only exception. I have not thought it necessary to determine whether the master properly admitted the testimony in question, as, according to the view I intervellorhimself failed to produce any lehave taken of the gal testimony as against the receivers entitling him to have the claim . .allowed as an equitable li,en upon property lately in their possession. No testimony was offered by the intervenor, save the record and judgment of the suit in the state court above referred to, coupled with an :admissi()liby the receivers' coumel that that suit was based upon the .same cause of action which is embraced in the last intervening petition. As the, railway company is a defendant in the present proceeding, as well .as the receivers, the record of the auitin the state court waS no doubt .admissible as against the railway company, but iumy judgment it was not admissible against the receivers in ,their capacity as representatives 'of the' mortgage bondholders. As against the .mortgage bondholders, '(who are represented by the the receiVers in the defenseo! all suits of thisoharaotetto fix liemi'on the mor\gaged property,) the judgment of -the state court was not 'admissible to establish that the railwaycompan)r was indebted to the intervenor, and certainly not, to' esbiblish that the indebtedness was an equitable charge oli the mortgaged propertysupe'rior in dignity to the mortgage debt. \ This conclusion is based on" the fact that the receivers were not made parties to the suit in the state court, nor was any cine made a party to that suit who represented the mortgage bondholdersl ·orwho 'stood in privity with them, in such m.anner' that the judgment can bind them with respect to any question thereinadju·dicated. If the intervenor, for any reason, considered it desirable to liquidate his demand in the state court with a view of making the judg'ment there obtained the· basis ofa future claim against the mortgaged property in the custody of this court, then his actidnwa!\ hostile to the interests of bondholders; and , according to the plainest prin. d ples, tlie as representatives of the mortgage bondholders, :should have been made parties to the proceeding in thestateconrt,and leave to that effect should have been obtained. As they were not made parties to that SUit, and as no leave waS asked to make them parties, and 'as they took no part in that proceeding, the judgment obtained has no probative forceasagai11st the mortgage bondholders. As to them the 'proceeding i11 the state court was Tesinter alios ada. In this view of the case, it makes:no difi'erencewhether the action of the master in admitting the record made :on the' first illtervening' petition was justifiable ;or otherwise. The i11tervenor made no case entitling him .to an equita>hIe ,lien 011 the mortgaged property ,Whether the evidence' in,question t
240
was admitted or excluded. The action of the master in awarding a general unsebured allowance against the railway company on the strength of the judgment the intervenor had obtained by consent against it in the state court was all that the. intervenor under the circumstances was entitled to. The exceptions are overruled, and the report of the master confirmed.
CITY :SANK OF BOONE 'V. MERSHON
al.
(Oircuit Oourt, S. D. Iowa, 0, D. December 12. 1887.) TRI..U .i-'-VERDICT-AMOUNT Oil'.
Ina suit to deterIlline the amount of defendant'.s indebtedness. the Jury found $1,175,07 due plaintiff. On motion for new trial. the account being complicated, the court ordered a reference. when the finding, after making certain allowances, $1,063.86, without interest. Held, that effectual jlls. tice.was obtained by the :verdict.
"
Motion for New Trial. . . City Bank of Boone,plaintiff, sued S. L. Mershon aI)d Bancroft, defendants, .to recover an. 'overpayment alle.ged to have been made by the plaintiff in settling the accounts of the BqoneSteel Company, · of which both were oreditors, and, the plaintiff trustee. Verdict for the plaintiff for $1,175.()7, and fqr new trial by defendants. E. L. Green and W. S. Olarlp,. for plaintiff. Oharles A. Olark, for defendants. SHIRAS,
J.
The Boone Steel Barb·Wire Company, being indebted
Chicago, executed to the former a chattel mortgage, and to the latter · bills of sale of certain personal property. The three parties finally entered into a written agreement, whereby the bank waived all claim to priority of lien on 140 tons of barbed wire then at the factory of the wire company nt Boone, consenting to act as trustee in the premises. The proceeds of sale were to be credited on the indebtedness due Mershon & Bancroft, estimated to be $8,500, until paid in full. Subse· quently the bank made an arrangement with Mershon & Bancroft to 1;1ndertake the sale of the wire, or a portion of it. The case was tried at the May term, 1887, the main issue being as to the amounts received by Mershon & Bancroft, and the amount of their indebtedness. The jury returned a verdict for plaintiff for $1,175.07, thus fixing this as the sum which the defendants had received aver and above the amounts due them, and· Which amount they were bound to account to plaintifffor. 'l.'he defendants moved for a new trial, and on account of the complicated nature of the dealings between the. parties,. and the necessity for an examination of the books of defendants, the court ordered a reference of cer-
,to the City Bank of Boone, and the firm of Mershon & Bancroft. of