RICHARD A. WHITTINGHAM vs. HERBERT S. OWEN.
Damages in Trover, Measure of.
1. A plaintiff in trover may receive back the article over which acts , of ownership have been exercised by another, and recover ÜW such damages as he has actually suffered; but if the damages , ... are so serious that he does not consider the property worth r '"l anything, he may refuse to receive it back and recover for the entire value.
'2. If plaintiff places a bicycle in the possession of defendant to sell for him and tells the latter to use it if necessary to make a sale and “show it to the boys,” defendant is not liable for injuries to the machine resulting from such use if the use were made in good faith for the purpose of making a sale, and it is immaterial that he combined considerations of pleasure to be derived from riding the machine.
At Law.
No. 27,287.
Decided October 21, 1890.
Justices Haghee, Cox and James sitting.
Motion by defendant for a new trial on a bill of exceptions in an action of trover.
Judgment reversed.
Mr. Guión Miller, for plaintiff:
The defendant was clearly guilty of a conversion of the bicycle in question.
“A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff’s right. * * * So using a thing without license of the owner is a conversion, as is also the misuse or detention of a thing by the finder or other bailer.” 2 Greenl. on Ev. (14th Ed.), Sec. 643; Story on Bailments, Secs. 188 and 413 ; 8 Wait’s. Actions and Defences, 164, 165, 166, 167, 178 and 198; Wheelock vs. Wheelwright, 5 Mass., 104; Hart vs. Skinner, 16 Vt., 138 ; Woodman vs. Hubbard, 25 N. H., 67; Phillips vs. Brigham, 26 Ga., 617.
*278The fact that the defendant had the machine repaired without consulting the plaintiff would in itself constitute a conversion. Hart vs. Skinner, 16 Vt., 138; 6 Wait’s Actions and Defenses, 165, 166, 167 and 170.
The plaintiff was not bound to receive back the bicycle,, and his taking it back as a loan would not preclude him from recovering the full value of the bicycle. Story on Bailments, Sec. 269; Hart vs. Skinner, 16 Vt., 138.
Where the owner has received back his property after a conversion, he may still sue in trover for damages occasioned' by the injury. Story on Bailments, Sec. 269.
The measure of damages was correctly stated to the jury.
The well-settled rule of damages in trover is “ the value of the goods at the time of the conversion, and interest from that time.” Johnson vs. Summer, 1 Metcalf, 172; Thomas vs. Sternheimer, 29 Md., 268; Wehle vs. Haviland,. 79 N. Y., 448.
Mr. Samuel Maddox for defendant:
“If property is left with a person, for a particular purpose and he applies it to another or different one, he is guilty of a conversion, but so long as he keeps within the line of the authority conferred upon him, he cannot be made liable in trover for the property.” 6 Wait’s Actions and Defences, 183.
“ While an agent acts within the scope of the authority conferred upon him, he is not liable to the principal introver for any misuse or disposition of the property made byliim.” Id., 695.
In order to enable a principal to maintain trover against his agent, it must be made to appear that he has entirely departed from his instructions. Nor will trover lie where the agent, though ’wanting in good faith, has acted within the general scope of his powers. McMorris vs. Simpson, 21 Wendall, 610; Sarjeant vs. Blunt, 16 Johns, 73.
A misuse of bailed property, in the particular use for which the bailment was made, will not enable the general: *279owner to maintain trespass or trover against the bailee. His only recourse is case. The article bailed must be put to a different use. Swift vs. Moseby, 10 Vt., 210 ; Rushworth vs. Taylor, 43 E. C. L., 932.
To support an action of trover, there must be a positive tortious act. Bromwell vs. Coxwell, 2 B. & P., 439.
The books abound in cases like the one at bar — that where property has been misused by a bailee, and subsequently taken back and used by the owner, the right to maintain trover is gone. Rotch vs. Howes, 12 Pick., 138 ; 24 Ala., 411.
Mr. Justice James
delivered the opinion of the Court:
This is an action of trover, in which the plaintiff seeks damages to the extent to which the property was used during the conversion.
The testimony upon which the bill of exception is based tended to show, on the part of the plaintiff, that ho placed a bicyle in the hands of the defendant to be sold, and told him that if it should be necessary to a sale they might use it and “show it to the boys.” The defendant states the same thing.
The defendant further testified that on a certain Sunday he joined a party of-friends (members of the same club as himself, and owners of bicycles), and went out east of the Capitol, and there crossed a square where some excavation of gravel was going on ; that in crossing that square they attempted to mount an acclivity of some twenty to thirty degrees; that all of them fell except one in making the ascent; that he himself fell the first time ; that he made a second attempt, when the bicycle broke.
The defendant had the instrument repaired, and made certain offers to pay the expense of any further repair, in case the first repairs were not found to be sufficient. After-wards the plaintiff received and used the bicycle.
The defendant asked an instruction that a simple return of the bicyle and acceptance of it by the plaintiff would cut *280off his action. That is not correct. A plaintiff in trover may receive back the article over which acts of ownership have been exercised by another, and recover such .damages as he has actually suffered. If the damages are so serious that he does not consider his property worth anything, he can refuse to receive it back and recover for the entire value. There is no error in the court’s refusing that instruction.
It is claimed, however, that in charging the jury as to whether there was a conversion by a use in a way not authorized, the court committed an error by telling the jury that they might consider the purpose for which this ride was taken. Iiis honor’s statement was as follows : “ I think that he, the defendant, had no right to use the machine for the double purpose of pleasure and exhibition; but if the pleasure followed necessarily from the exhibition, then, of course, he had a right to ride if it wa's for the purpose of exhibiting it. But if lie might just as well have taken some other machine for that purpose, if he ivas not riding it for the purpose of a sale, and the sole purpose of exhibiting it and advancing the interest of the owner, and if it was mixed up with a desire to have some recreation, why, I think, that would make him liable prima facie.”
It appears, further, that during the charge, a juror asked : “ Supposing it was a combination of purposes, how would it be then?” and to that the court replied : “I think the defendant would be liable.”
It is not easY to state just how the instruction should have been expressed, but wo think there was error in allowing the jury to understand that the mere admixture of a. purpose of pleasure would establish a use in a way that was not authorized. If the excursion ivas undertaken in good faith as a means of exhibiting the machine with a view-to securing a sale, it is not material that the .defendant was induced partly by considerations of pleasure to select that opportunity for - exhibition. The practical value of proof that the defendant had a personal motive of pleasure would *281fee that it might help to determine whether the defendant was occupied at all in exhibiting for a market. In other words, it .would be proper evidence on the question whether it was a business ride at all, or was undertaken solely for personal pleasure.
We may add that we grant a new trial with reluctance, and only with a view to secure a correct rule in cases where such double motives in using property are shown.
Judgment reversed and a new trial' granted.