49 Barb. 382 | N.Y. Sup. Ct. | 1867
Lead Opinion
This action was brought to recover damages for refusing to deliver certain bonds. The question arising in the case is as to the proof of damage, and the ruling of the judge that the plaintiff could only recover nominal damages.
The plaintiff, to prove the value of the bonds, offered to show that they were paid in gold by the company issuing them. This was excluded by the court. He also offered to prove what gold was worth in currency, at that time.
I think this evidence was admissible. The plaintiff could recover the value of the converted property at any time between the conversion and the trial j and the fact that they had been paid in gold was admissible to show what sum the plaintiff had lost by the wrongful act of the defendant.
I think, also, the judge erred in limiting the recovery to nominal damages. There was proof of their value if paid in gold. It is true that was the opinion of the witness, merely, and not an actual sale. But where there are no actual sales of an article, a witness may give his opinion of the value of such article. Simpkins testified that the bonds were worth par, in gold, as collateral security ; that he had borrowed on them at that rate ‘ their value in currency was 260. He also states previous sales in gold at 90 to 95. He adds that their value was 240 to 260 in currency, not that he knew of sales to that amount. This evidence was in the case, and the judge refused to strike it out. It was before the jury, and certainly warranted the conclusion that the bonds were worth more than par in currency. I do not consider the legal tender act passed by congress, as excluding this evidence from the consideration of the jury. The charge of the court seems to have been founded on that statute. I
The true question was not what the obligors could be compelled to pay for them, but what they actually did pay, in ascertaining the plaintiff’s loss. Suppose the defendant had retained the possession of the bonds until their payment, would it not have been admissible to prove that fact, and that the defendant received on such payment, gold to the face of the bonds ? I cannot think that it was intended by the legal tender act, to enable an agent to receive for a claim, gold coin, and relieve himself from liability by payment in currency. Not that a contract may be violated,, and the party in default relieve himself from damages by paying in currency for what he has realized in gold.
The question will be presented more forcibly by suggesting the case of one who has a sum of money in gold coin to deliver to another, which he refuses to deliver, and converts to his own use. Would justice be satisfied by holding the defendant excused on paying that amount, in currency ? The same principle must govern here.
A new trial should be ordered, costs to abide the event.
Leonard, P. J. concurred.
Dissenting Opinion
(dissenting.) I am of opinion that this case was correctly disposed of at the circuit.
Whether the true theory of the action is that the defendant is liable by reason of his neglect to purchase the bonds for the plaintiff, or that the plaintiff became the owner of the bonds through the defendant’s purchase, and the defendant is liable for their conversion, in either case the measure of the plaintiff’s loss is1 the excess of the value of the bonds over and beyond the sum which the defendant paid for them. There is no legal evidence that the value of the bonds ever
Prima facie, each of the bonds, forty in number, was worth only the sum payable by its terms, to wit: 500 dollars, or 20,000 dollars in the aggregate, being 3000 dollars less than the amount paid by the defendant. This was not conclusive, however, and it was competent for the plaintiff to show, if he could, that the bonds were worth more than par. He undertook to prove that they were worth much more than the defendant paid for them, but the testimony produced by him was insufficient for that purpose. The proof showed that the bonds were issued by a corporation in the state of California, known as the San Francisco Water Works Company. They were issued in 1859, and were made payable in April, 1864. The whole amount of bonds created was 150,000 dollars, but the amount actually issued by the company was only 84,500 dollars. The bonds were never sold in public market, and there was no market price for them in San Francisco, New York or elsewhere. The only private sales shown, were the one in controversy, and four others which took place in 1860 or 1861, at San Francisco, at prices ranging from ten per cent below par, in gold, to six per cent above. In the absence of evidence that the bonds had a market™value exceeding the price paid by the defendant, the plaintiff proved, or offered to prove, • that customarily all transactions in California are in gold currency, unless otherwise expressly agreed ; that the receipts of the company for water dues were collected in gold; and that the company, in pursuance of a resolution of their board of directors, paid in the like currency other bonds of the same issue as those in suit, upon presentation. The plaintiff also offered to prove the market price of gold in July, 1864, and it may be assumed, for the present purpose, that between the time.of the defendant’s purchase in February, 1864, and the commencement of this suit, gold was sold in market at a pre
The testimony of the plaintiff, and of his brother, that the bonds were worth in currency whatever gold was worth, to wit, from 240 to 260 per cent, adds nothing to the plaintiff’s case. It is apparent from the cross-examination of these witnesses that they had no facts to go upon, except those above stated, and that their testimony on the subject of the value of the bonds is simply the expression of an opinion, or rather of a truism, that if the bonds were in fact paid in gold, they were worth, to the holder, what gold was valued at in the market.
The judgment should be affirmed.
blew trial granted.
Leonard, Ingraham and J. C. Smith, Justices.]
