The opinion of the court was delivered by
We understand that the plaintiff is proved in this case to have been the original owner of the animal in question, and never to have parted with his title. Is there any thing in the case, then, which will estop him from now asserting his title against the defendant. This is claimed upon the ground that he did not assert any claim to the animal except upon a bill of sale, for the security of five dollars, which was shown upon the trial to have been paid, and that the defendant has acted upon the belief of the truth of this being the plaintiff’s only claim of title, and will now suffer serious injury if the plaintiff is allowed to set up a new ground of claim not before disclosed.
There would be great force in this, if it appeared in the case that the plaintiff, at the time he was inquired of by the defendant in regard to the nature of his claim to the animal, knew that it was the same animal which it ultimately proved to be. But this does not appear. And it is stated in the report of the referees, that at the time the plaintiff took his bill of sale he supposed it to be a
But in regard to the amount of the recovery, the defendant is only liable for the value of the property at the time of conversion, and interest after. There can be no doubt that the pledge of the animal by Preston to the defendant, under the state of the title disclosed at the trial, was a conversion of the property, both in Preston and the defendant, whether the defendant was aware of the facts or not. The defendant can only stand upon the title of his vendor, and his ignorance of the nature of that title will not enlarge his title. This is substantially dicided in Swift v. Mosely, 10 Vt. 208. The plaintiff is therefore only entitled to recover the smaller sum reported.
Judgment reversed, and judgment for the plaintiff for the smaller sum reported, and interest from the date of the report.