44 Ill. 312 | Ill. | 1867
delivered the opinion of the Court:
That appellants are liable for damages in this case, is not, nor can be, contested. But it" is urged that the court below adopted, in the instruction given, a wrong measure for such damages. It informs the jury, that, “if the company lost the note by carelessness, then the plaintiff is entitled to recover the value of the note, and that the value, in the absence of evidence to the contrary, is the amount of the note.” There seems to be no question that the note was lost, and the jury were warranted by the evidence in finding that it was through the carelessness of the other company with which they had arrangements to make such collections. The law seems to be well settled, that, in an action of trover for the conversion of a note, the amount expressed in it is, prima facie, the measure of damages, and it devolves upon the defendant to prove that it was different. So then if a recovery had in this case been under a count in trover, this was the true measure of the damages.
But, if the finding was under the count in case, for the negligence in losing the note, the question arises whether a different rule should prevail. In all actions for wrongs, unaccompanied with circumstances which authorize a jury to give punitive damages, the true measure is the amount oí damages the plaintiff really sustained; and, in an action of case like the present, this would no doubt be the rule. But, when appellee proved the loss of the note through negligence, prima facie the sum due on the note would be the actual loss which he sustained. In case, as in trover, the note is lost to the owner, and his injury by the loss would be the same. Whether lost by negligence or delivered to a wrong person, can make no difference as to the injury sustained. In this case he has lost his note, and it is by the negligence of the bailee. It is conceded that appellee’s action at law is gone, but it is contended that his remedy in equity is complete. Even if this were granted, would it follow that appellee was bound to resort to it ? He has by the negligence of appellant been deprived of the evidence of the debt, and the evidence shows that the maker of the note was solvent, and had the company presented the note it would probably have been paid.
If a bailee was robbed of goods through his negligence, it would not be an answer to an "action on the case to say, that the owner could pursue the thief, and recover his property by an action of replevin, and could only recover the expense of the replevin suit. Yet in that case the ownership would not be changed, and he could recover as effectually as appellee can in this case. Appellants undertook to collect the money, and it was their duty to have used the usual means by themselves or their agents to do so, or answer in damages for loss occasioned by their negligence.
Notwithstanding the sum of money due on the note, with interest, is prima facie the measure of damages, the defendants may prove, by any legitimate evidence, that the damage was in fact less. If they had in this case shown that the maker was insolvent, or that there was any legal defense to the note, or any other state of facts by which his loss was reduced, it would have lessened the damages to what the real loss was shown to have been.
In this case, appellants gave no such evidence to the jury. It then follows that if their instructions on this question did present correct abstract legal propositions, no injury has resulted by their refusal, or by giving appellee’s instructions.
It is not error to refuse to give instructions which contain correct legal propositions, if there is not evidence upon which to base them. We have, however, been referred by appellant to the case of Hamilton v. Cunningham, 2 Brockenbrough, 350, as an authority in this case. We have examined and carefully considered it, and fail to see that it militates against the views here expressed. The facts of the two cases are different. In that, the bills of exchange were remitted and received as a payment, or the means of payment, of an existing indebtedness, and the question was, as to which should sustain the loss, the debtor or the creditors. The creditors having failed to give notice of the protest of the notes received in payment of the bills, and having given credit to the debtor, the creditors were held to be liable for the loss. That case was decided on the principles of commercial law. In this case the note was received by an agent to collect for a compensation, and through their carelessness the note was lost, and they are prima facie liable for the face of the note. By its loss the holder is deprived of the evidence of his debt, and he should not be required to be at the trouble and expense of supplying it; that should fall upon the party whose wrong has produced the injury.
If a recovery of the debt may yet be had, it is but reasonable for appellants to take the hazard, incur the expense and suffer the inconvenience. They have the proof in their power, and a court will, upon indemnifying appellee, permit appellants to proceed in her name for its collection. Their negligence has produced the difficulty, and they should suffer the inconvenience and consequent loss. They have no right to shift it to others who have in no way contributed to the injury. By appellee suing and recovering the principal and damages in this case, appellants thereby become invested with the right to look to the maker for the means of indemnifying themselves for money when paid in this action.
It is again urged that the court erred by instructing the jury, that, if it appeared that the note was lost by the defendants, or those to whom it was intrusted, and it is not shown under what circumstances it was lost, it is presumed that it was lost by carelessness.
When a party is intrusted with property, and is unable to account for it only by proving that it has been lost, and can show no circumstances attending its loss, — if not a legal presumption of carelessness, it is of that strong character that the court would not be inclined to reverse a judgment for giving such an instruction, even if it were not a legal conclusion. It is so strong that such an instruction could not mislead a jury by informing them that it created a legal presumption. We can imagine no answer that could be urged against its forcible character. The statements of the facts produce convictions of carelessness to every mind.
The judgment of the court below must be affirmed.
Judgment affirmed.
