33 F. 236 | U.S. Circuit Court for the District of Western Missouri | 1888
(after stating the fads as above.) The demurrer being general, I am not specially advised of the objections to the petition intended to be urged, but I assume that the demurrer was designed to question the plaintiff’s right to recover such damages as are claimed in the petition. The complaint shows, however, that the defendant wrongfully and ulawfully took and carried away certain cattle belonging to the plaintiff with intent to convert them to his own use. Inferentially the complaint also shows that the plaintiff ultimately recovered the cattle; such recovery of the property does not operate, however, to extinguish the right of action for the original unlawful taking. At most the return of the property merely mitigates the damages that would otherwise be recoverable, so that, in any event, plaintiff has a right of action if for nothing more than nominal damages, and a general demurrer will not lie, but must be overruled. Sparks v. Purdy, 11 Mo. 220; Ewing v. Blount, 20 Ala. 694. I would not be understood as intimating by the last remark that, according to the allegations of this petition, the plaintiff can only recover nominal damages; on the contrary, I think the petition shows that it is entitled to substantial damages, if the proof supports the averments. When property has been unlawfully converted, but has been regained by the true owner, the measure of damage has in some cases been held to bo the market value of the same at the time of conversion, less the market value thereof at the time of the return. Lucas v. Trumbull, 15 Gray, 306; Ewing v. Blount, 20 Ala. 694; Rank v. Rank, 5 Pa. St. 211. The petition in this case shows that between the time of the taking and return of the cattle in question they depreciated in value in the sum of §3,000. This item would seem to be a proper element of damage. Furthermore, the rule is that a person whose property has been converted, and is afterwards regained, is entitled to recover for time necessarily spent, and other reasonable outlays incurred, in recovering it. Vide Bank v. Leavitt, 17 Pick. 1; Ewing v. Blount, supra; McDonald v. North, 47 Barb. 530; Keene v. Dilke, 4 Exch. 388; Hurlburt v. Green, 41 Vt. 490; Baldwin v. Porter, 12 Conn. 473. Now, in the present ease the petition shows that plaintiff', for the-purposo of regaining its cattle alter they had been wrongfully taken, was compelled to pay bills for freight and feeding of the cattle, also certain traveling expenses of its officers, said to amount in the aggregate to $2,500. These expenses lessened the value of the cattle when recovered; they accordingly form one of the elements to be considered in estimating the actual loss occasioned
• . Upon the whole I have no doubt that the demurrer is without merit, and I accordingly overrule it.
