9 Wis. 348 | Wis. | 1859
By the Court,
On the trial of this cause the circuit court was requested, on the part of the plaintiff in error, in effect, to instruct the jury, that if they should find from the evidence, that the plaintiff in error was not interested in Falkner’s purchase, and that Falkner did not purchase the certificates for him, directly, or indirectly; that then the fact that the plaintiff in error had purchased the certificates after the commencement of the suit could not be taken into consideration by them in determining the damages which the plaintiff in error was entitled to recover. Under the facts and circumstances of this case it appears to us that this was a very proper instruction to be given to the jury, as a glance at the case will satisfactorily show.
•The action was commenced upon a promissory note given by Ainsworth to Bowen, bearing date March 9, 1857, and payable to Bowen, or order, one year from date. The note
It appears from the testimony of Mr. Falkner, that on the 6th of May, 1858, out of friendship for Mr. Ainsworth (as he says) he sold the certificates to Mr. Ainsworth for the amount he paid for them, and a trifling commission added. From these facts the materiality of the instruction becomes apparent. The very ground of the counter claim was that there had been an illegal and wrongful sale of the certificates by Bowen. If the certificates were a proper subject of a pledge, which has been assumed by counsel upon both sides in the argument, but a point upon which we express no opinion, and if they were sold at a suitable place, in a fair and public manner, on a reasonable notice thereof to Ainsworth, then he has no cause of complaint. But if, on the contrary, the certificates were illegally and wrongfully sold by Bowen, then
The circuit court, however, instructed the jury, that the circumstances of Ainsworth’s having re-purchased these certificates from Falkner could properly be considered by them in determining the amount of damages which Ainsworth was entitled to recover for the wrongful misappropriation of his property. But really how could the rule of damages be changed by the wholly extraneous and immaterial circumstance that Ainsworth had obtained his property by a subsequent purchase ? Suppose he had paid Falkner more for the certificates than they were worth, it would not be contended for this reason that the amount of his recovery should be enhanced. Neither would the measure of damages be changed had Falkner given him the certificates. This counter claim set up, must be deemed analagous to an action in trover for the recovery of the certificates tortiously converted, and the value of the property at the time of the conversion in the latter case furnishes a fair rule for the measure of damages. The certificates are of a determinate fixed value, and (¡if they were illegally and wrongfully sold by Bowen, as alleged in the counter claim, then Ainsworth should recover such value, less the seventy dollars already realized from the sale, and passed to his credit by indorsement on the note, and also the balance still due upon said note.
It was insisted by the counsel for the defendant in error, that as the jury found the sale properly made, under the circumstances, there were no damages to be awarded, and con
It is believed that these observations sufficiently dispose of this case and consequently we withhold our opinion upon the other points made upon the argument.
The judgment of the circuit court is reversed, and the cause remanded for a new trial.