of a note, it is a condition precedent to maintaining an action for damages for conversion that the plaintiff has offered to satisfy the note. Again, damages may be recovered from the hirer of a team where they result from the want of ordinary care in its use.10 So money stolen from clothes in a booth while trying on clothes for purchase may be recovered from the shopkeeper." And a bailee of grain, who is also a guarantor of the undertaking of the defendant, is liable for grain sold and not accounted for as stipulated."

13

§ 1926. Same subject continued.-Damages for loss by fire of goods in its warehouse awaiting call may be recovered of a railroad company whose negligence prevented firemen from reaching the fire and extinguishing it, as they would otherwise have done without loss. So damages may also be recovered for the delivery of wheat of an inferior quality to that guaranteed in the receipt given for storage. If, however, goods are placed in cold storage without any express contract for storage, and they are at the risk of plaintiff, no damages are recoverable for injuries occasioned by natural causes of which the plaintiffs had knowledge. And where, without negligence on his part some of the goods in possession of a carrier as a

13

Dock & Harbor Board, 81 Law T. N. S. 44; 68 L. J. Q. B. 842 (1899); 2 Q. B. 205.

9 Clarke v. Adam (Tex. Civ. App. 1902), 69 S. W. 1016. Examine Meyer Bros. Drug Co. v. Matthews (Ark.), 64 S. W. 264; Reardon v. Patterson, 19 Mont. 231; 47 Pac. 956; Barber v. Hathaway, 169 N. Y. 575; 61 N. E. 112, aff'g 47 App. Div. 165; 62 N. Y. Supp. 329; Usher v. Van Vranken, 48 App. Div. 413; 63 N. Y. Supp. 104; Kaminski v. Schefer, 46 App. Div. 170; 61 N. Y. Supp. 771; Muhlenberg v. Tacoma, 25 Wash. 36; 64 Pac. 925; Rush v. First Nat. Bk., 36 U. S. App. 248; 17 C. C. A. 627; 71 Fed. 102.

10 Purnell v. Miner, 49 Neb. 555; 68 N. W. 942.

14

Ct. 112. See this case and others cited at end of sec. 1928, herein.

12 Johnson v. Allen, 70 Conn. 738; 40 Atl. 1056.

18 Hardman v. Montana U. R. Co. (U. S. C. C. A. 9th C.), 48 U. S. App. 570; 27 C. C. A. 417; 83 Fed. 88; 39 L. R. A. 300. Examine as to liability of a railroad company as warehouseman, etc., for damages sustained by fire from the operation of its road, Walker v. Eikelberry, 7 Okla. 599; 54 Pac. 553; 13 Am. & Eng. R. Cas. N. S. 253; Okla. Gen. Stat. 1893, chap. 37.

14 Lawson v. Genesee Farmer's Alliance, J. S. Co. (Id.), 43 Pac. 191; 1 Id. Sess. Laws, 1891, p. 12, sec. 6.

15 Sutherland v. Albany ColdStorage & W. Co., 55 App. Div.

11 Hunter v. Reed, 12 Pa. Super. (N. Y.) 212; 66 N. Y. Supp. 835.

warehouseman are stolen, after a valid attachment issued against the consignee, the carrier's liability for damages extends only to the remaining goods which he wrongfully refuses to deliver.16 Nor is a warehouseman liable for damages where by reason of an unprecedented flood, grain stored is injured by the falling of the walls, unless, after notice of the unsafe condition of the building, he fails to exercise ordinary care and diligence in preparing against the damage." Again, if the owner of property expressly assumes the risk of the damage or loss, as in case of an exception therefrom in favor of the charterer of a vessel, such agreement operates as an exemption of liability of the charterer. And if a bailor knows of the unfitness of the place of storage of goods provided by his bailee, or he has equal opportunities by the inspection, etc., with the bailee of knowing it, he cannot recover of the latter for damages resulting to his goods by reason of such unfitness.19 Nor can there be a recovery for depreciation in stocks pledged for a loan where they are attached in an action against the pledgee, but their disposition by him is not thereby prevented, and the depreciation arises after said attachment issues and before the pledgor can pay the loan. Nor are damages recoverable from a bailee who detains goods to secure him for work done thereon, where no tender of the amount due thereon is made by the bailor.21

§ 1927. Damages recoverable-General decisions.-The damages recoverable for breach of an agreement to redeem and deliver certain property pledged for a partnership is the amount for which the same was pledged." A recovery may also be had, by one tenant in common of a gold mine, of his portion of the proceeds of working the mine, together with the actual profit thereon, where the other tenant in common has

16 Frank v. Central R. Co., 9 Pa. | 59 Kan. 626; 54 Pac. 672; 47 Cent. Super. Ct. 129. L. J. 479.

17 American Brew. Assoc. v. Talbot, 141 Mo. 674; 42 S. W. 679; 64 Am. St. Rep. 538.

20 Fourth Nat. Bk. v. Crescent Min. Co. (Tenn.), 52 S. W. 1021.

21 Kafka v. Levensohn, 41 N. Y.

18 McCormick v. Shippy, 119 Fed. Supp. 368; 18 Misc. 202. 226.

22 Levien v. Levi, 37 N. Y. Supp.

19 Parker v. Union Ice & Salt Co., | 689; 16 Misc. 80.

23

received the entire proceeds. And a bank is liable to one of two joint depositors to the full extent of his interest, where no inquiry is made and there is no limitation of liability in case of a wrongful payment." But the amount due from a factor to the principal limits the recovery, where the former, to secure his own debt, pledges the latter's goods to an innocent pledgee.

25

26

§ 1928. To what extent value recoverable-Rule and general decisions. It is apparent from the following decisions that, as between the bailor and bailee, the measure of damages for breach of the contract of bailment, whether the breach arises from an actual or constructive conversion amounting to a tort, or otherwise, is based upon the value of the property pledged, the intent of the courts being evidently to award compensation to the extent of the actual damage sustained. Thus an agreement to pay the lessor the value of property damaged or destroyed obligates the lessee to pay therefor in case of the destruction thereof. And, unless it is shown. that they are not collectible, the face value of collaterals which are not returned upon satisfaction of the debt for which they were pledged may be recovered." So the difference between the value of collateral lost by the pledgee and the amount of the debt secured, including principal and interest, is the measure of damages for such loss. The value of collateral security sold and not credited is also recoverable." And the value of property pledged, and not the amount of the loan, constitutes the measure of compensation against the pledgor, where it is taken and sold on execution as the pledgor's property." The value of a trunk may also be recovered, where there is a conversion thereof by a wrongful delivery, although said prop

28 Huff v. McDonald, 22 Ga. 131.
24 Neiman v. Beacon Trust Co.,

170 Mass. 452; 49 N. E. 748.

28

27 Union Bk. v. Elliott, 14 Man. R. (Can.) 187.

28 Union Nat. Bk. v. Post, 93 Ill.

25 First Nat. Bk. v. Boyce, 78 Ky. App. 339, aff'g 61 N. E. 507.

42; 39 Am. Rep. 198.

20 Rapid Safety F. E. Co. v. HayBudden Mfg. Co., 77 App. Div. (N. Y.) 643; 79 N. Y. Supp. 1145, aff'g 75 N. Y. Supp. 1008; 37 Misc. 556.

29 Hennessey v. Stempel, 108 La. 159; 32 So. 394.

80

Soule v. White, 14 Me. 436, before the statute of 1835, ch. 188.

32

31

31

erty was merely left with the bailee for safekeeping. So the value of articles left in a trunk and belonging to a wife individually, may be recovered from the bailee with whom they were left for storage. The value of an animal killed may also be recovered from a bailee for hire who has not returned it, even though the killing occurred without the bailee's fault subsequent to the expiration of the period for hiring. So the value of an animal at or about the time of the injury, together with expenditures incurred in attempting to effect a cure, may be recovered where such animal dies in consequence of a nonexercise of the required skill in shoeing it under a contract for such work. If, however, the requisite care was exercised and the injury and consequent death was the result of accident, there can be no recovery. Again, in case a part of the property delivered to a compress company is lost, the value recoverable will not be that at the time the suit was commenced, but the value at the time of discovery of the loss. But the value of diamond ring cannot be recovered, where it is stolen from the fob pocket of a pair of trousers left in a booth of a store while trying on a suit of clothes for purchase.

34

§ 1929. Wrongful conversion by pledgee."-The value of a wagon which a bailee, who had taken it to repair, had wrongfully converted and refused to return on demand, is recoverable. Again, if damages are occasioned by a wrongful appropriation of pledged stocks by the pledgee, they may be recouped in an action on the note secured by such collateral.

31 Markoe v. Tiffany & Co., 163 N. Y. 565; 57 N. E. 1116, aff'g 26 App. Div. 95; 49 N. Y. Supp. 751. 32 Markoe v. Tiffany & Co., 163 N. Y. 565; 57 N. E. 1116, aff'g 26 App. Div. 95; 49 N. Y. Supp. 751.

of cases of like character. See Sulpho Saline Bath Co. v. Allen (Neb. 1902), 92 N. W. 354; Bunnell v. Stern, 122 N. Y. 59; 34 N. Y. St. R. 248; 26 Abb. N. C. 238; 25 N. E. 910; 1 Am. Neg. Cas. 864, rev'g 14 Daly,

83 Cochran v. Walker (Tex. Civ. 357; 13 N. Y. St. R. 71; 27 Wkly. App.), 49 S. W. 403. D. 477; Woodruff v. Painter, 150 Pa.

84 Pusey v. Webb, 2 Pennewill St. 191; 24 Atl. 621; 1 Am. Neg. Cas. (Del.), 490; 47 Atl. 701.

85 Hattiesburg Compress Co. v. Johnson (Miss. 1903), 33 So. 654. 36 Hunter v. Reed, 12 Pa. Super. Ct. 112. This case may, however, be distinguished from the general class

872.

87 See secs. 1114, 1125, 1137, 11461179, herein.

38 Bain v. Ganzer, 74 App. Div. (N. Y.) 621; 76 N. Y. Supp. 820.

39 Rush v. First Nat. Bk. (U. S. C.

So the value of shares of stock wrongfully converted to pledgee's own use may be recovered. And the market price of stocks at the time of default admeasures the damages, where they are loaned, to be returned at a specified time." But only the value of the pledgor's interest in the property at the time of the pledgee's wrongful conversion can be recovered, less the amount of the debt.42

§ 1930. Wrongful sale.-Generally, any damages sustained by the pledgor by a wrongful sale of the pledge can be recovered. So the measure of damages for wrongful sale of collateral is, prima facie, where the security is the obligation of a third party, the amount unpaid thereon at the time of the conversion, but the maker's insolvency or any fact impeaching the value of the security may be shown in reduction of damages." And the difference between the face value of collateral and the amount of the pledgor's debt at the time of the sale, rather than the full amount of the collaterals, admeasures the damages where such collaterals are sold for less than their face value and the note secured thereby is transferred after due to a person who has knowledge that the security is for the payment of the note. If the value of the property wrongfully sold is fixed, such value with interest may be recovered.

§ 1931. Notes, bonds and land certificates."-The full value of a note pledged can be recovered by the pledgor where the pledgee, the debt being discharged, wrongfully refuses to deliver the note.48 So the full amount of a vendor's lien note pledged as collateral may be recovered by a plaintiff who has

C. A. 8th C.) 36 U. S. App. 248; 17 rev'g 46 N. Y. St. R. 967; 11 N. Y.
C. C. A. 627; 71 Fed. 102.
Supp. 885. See id., 135 N. Y. 469;

40 Blood v. Erie Dime Sav. & L. 48 N. Y. St. R. 469; 32 N. E. 248; Co., 164 Pa. 95; 39 Atl. 362. See id., 21 App. Div. 442; 47 N. Y.

41 Day v. Perkins, 2 Sandf. Ch. (N. Supp. 609, rev'g 26 Civ. Proc. 190. Y.) 359. See id., 137 N. Y. 542.

42 Van Schaick v. Rumsey, 90 Hun (N. Y.), 359; 70 N. Y. St. R. 666.

48 Schaaf v. Fries, 90 Mo. App. 111.

44 Griggs v. Day, 136 N. Y. 152; 48 N. Y. St. R. 853; 32 N. E. 612,

45 E. F. Hallack Lumber & Mfg. Co. v. Gray (Colo.), 34 Pac. 1000. 46 Douglass v. Kraft, 9 Cal. 562. 47 See secs. 1126, 1136, herein. 48 Clark v. Cullen (Tenn.), 44 S. W. 204.