time fixed for performance and not at the time when his forward contract was made.50

Evidently the theory of this case is opposed to that of Roth v. Tysen, supra, and tends to sustain the view that plaintiff should not be required in such a case to make a forward contract.

58. Reduction of damages.-Defendant may give evidence of certain facts showing that the damages against him should on account of such facts be reduced; as where the act inflicting the injury at the same time conferred a benefit on plaintiff. In Jewett v. Whitney defendant wrongfully took possession of an old mill in which plaintiff had a one-half interest. Defendant tore down the old mill and erected a new one in its place. It was held that while defendant was a trespasser, plaintiff was not damaged, because the benefits to his property were greater than the injury.51 So where defendant is sued for conversion of property he may show that plaintiff or someone on his behalf accepted some reparation or benefit on account of such conversion or received the property or a portion of it back.52

To this extent there may be a reduction of damages caused by the conversion. But even though the goods or a portion of them have been returned and accepted, plaintiff is not thus deprived of his cause

50 Missouri Furnace Co. v. Cochran Adm'x., 8 Fed. 463, LEADING ILLUSTRATIVE CASES. Other cases bearing on the subject but still leaving it unsettled are: Leigh v. Paterson, 8 Taunton 540; Brown v. Muller, L. R. 7 Ex. 319; Kadish v. Young, 108 Ill. 170, 48 Am. Rep. 548; Hinckley v. Pittsburg Steel Co., 121 U. S. 264; Roehm v. Horst, 178 U. S. 1.

51 43 Me. 242.

52 Lucas v. Trumbull, 81 Mass. 306; Merrill v. How, 24 Me. 126; Stephenson v. Wright, 111 Ala. 579; Hopple v. Higbee, 23 N. J. L. 342.

of action, and such facts may be proven only to reduce the damages and not as a complete defense.53

Where goods of plaintiff are converted by defendant, or defendant, being in possession, has on demand wrongfully refused to give them up, he may not thereafter tender them to plaintiff or compel plaintiff to take them back against his will, and thus secure a reduction of damages for the conversion.54

59. Benefits by operation of law or from a stranger. When it can be shown that by operation of law the injured person is benefited in connection with the cause of injury, this may be proved by defendant to reduce the damages sustained. Thus when under a writ against the owner of the goods a sheriff took them from a wrongdoer and applied the proceeds to the debt of the owner, these facts may be shown to reduce the damages.55 Generally, however, the wrongdoer will not be permitted to take advantage of a benefit conferred by a third person whereby the damages may have been reduced. Such a benefit inures to the advantage of the injured party but not to the wrongdoer.

So where defendant wrongfully took the goods of plaintiff in attachment and they burned while in his possession, he was not permitted to show, when sued for damages, that plaintiff had received from the insurance company the amount for which the goods were insured.56

53 Watson v. Coburn, 35 Neb. 492, 53 N. W. Rep. 477.

54 Gilbert & Miller v. Peck, 43 Mo. App. 577; Clark v. Hallock, 16 Wend. 607; Hart v. Skinner, 16 Vt. 138.

55 Lazarus v. Ely, 45 Conn. 504; Collins v. Perkins, 31 Vt. 624.

56 Perrott v. Shearer, 17 Mich. 48.

Also where plaintiff was injured by defendant's negligent act, he was permitted to maintain an action for damages to recover of defendant the value of the services of a nurse, even though such services were contributed to the plaintiff by members of his own family free of any expense to him.57

57 Brosman v. Sweetser, 127 Ind. 1; See Elmer v. Fessenden, 154 Mass. 427.

CHAPTER VIII.

VALUE.

60. Higher intermediate value.-The general rule relating to the measure of damages for the conversion of property is that the market value of the property at the time and place of its conversion may be recovered. Ordinarily this rule will be found to measure plaintiff's loss justly and properly. And so upon a breach of contract for the sale of property the damage may generally be measured by the market value of the property at the time and place of delivery stipulated in the contract. But certain facts may appear which will justify the adoption of a different rule. Where property of a fluctuating value has been converted, many courts have held that the highest market price of the commodity from the date of conversion to the time of trial could be recovered against the wrongdoer. But this rule gave to the owner a great advantage which in many cases seemed unfair, as he had the chance of waiting till the market changed many times and then selecting the highest mark it had made with which to measure his damage.5

58

The question was thoroughly examined in Baker v. Drake and the following rule adopted, namely, that in actions for conversion of stocks the measure

58 Markham v. Jaudon, 41 N. Y. 235; Rand v. White Mountains R. R. Co., 40 N. H. 79.

59

of damages is the highest market price within a reasonable time after plaintiff has been given an opportunity by due diligence to go into the market and purchase similar property with which to indemnify himself. This rule has been applied especially to the sale of stocks, or to their conversion, and it seems to be growing in favor wherever it can be applied to the sale or conversion of any property the market value of which frequently changes.

61. Where there is no market value of property. -It not infrequently becomes important to establish the value of property for which there is no general market and therefore no market value. The market value may not properly measure plaintiff's damages where from the situation of the property, or from its character, there is no market for it. Thus if it can be shown that property converted has a special value, plaintiff is entitled to a recovery based on that value. Property of this kind may exist of which no proof of value in market could be given because it is not known in the market. But it by no means follows that a court may not adjudge damages for the destruction of such property.

The evidence to establish value in such cases must vary according to the facts in each case. So if the property is useful for some special purpose evidence of such use is properly admitted. Where an action was begun against defendant for burning grass on the farm of plaintiff, the court admitted evidence of the value of grass as hay, as well as for pasturage

59 53 N. Y. 211; Wright v. Bank of Metropolis, 110 N. Y. 237, 6 Am. St. Rep. 356; Galigher v. Jones, 129 U. S. 193; Citizens Street R. R. v. Robbins, 144 Ind. 671, 25 Am. St. Rep. 445.