107 Wis. 645 | Wis. | 1900
Two questions are suggested by the record: (1) Does the evidence show that defendant ivas guilty of a Conversion of the property sued for ? (2) Was the taking of the property by plaintiff pending the suit a waiver of his cause of action for conversion ?
1. We will first inquire what acts of a party constitute a conversion. Perhaps as terse a definition as can be found in the books is given in Cooley, Torts (2d eel.), 524. ' The learned author says: “ Any distinct act of dominion wrong
2. After this suit was commenced the plaintiff took possession of the property, and it is now claimed by defendant that he waived his right to further prosecute his action. We are referred to Collins v. Dowry, 78 Wis. 329, as an authority sustaining that proposition. This was an action for the conversion of certain shares of stock. Pending the action the defendant brought such shares into court and tendered them to plaintiff. At the trial plaintiff announced his readiness to accept the stock, and thereupon introduced the stock certificate in evidence. He claimed also the right to recover damages for his time, trouble, and expense in attempting to secure a return of the stock. The court directed a verdict
This rule was recognized in Churchill v. Welsh, 47 Wis. 39, is incidentally referred to in Ingram v. Rankin, 47 Wis. 406, and is expressly stated in Parroski v. Goldberg, 80 Wis. 339. In Churchill v. Welsh, 47 Wis. 39, and again in Warder v. Baldwin, 51 Wis. 450, this court discussed the circumstances under which there may be a return of the property converted, in mitigation of damages, pending the suit. The conclusion arrived at was that in case of such return, and in the absence of evidence showing special damage, the recovery should be limited' to nominal damages.
Many other cases might be cited, but to do so would incumber the record. The rule is universal, and rests upon the ground that the return of the property does not extinguish the cause of action, but simply goes in mitigation of the damages.
It being established in this state that special damages may be recovered in actions of this kind, the infirmity of the rule-stated in Collins v. Lowry, 78 Wis. 329, becomes apparent. The theory of the case is not that “ the defendant is’ only
By the Gourt.— The judgment of the circuit court is affirmed.