Doolittle & Chamberlain v. McCullough.

senting their defense, would be error. Does the record in this respect disclose such error?

It is true, the court refused to charge the jury in the language requested by counsel for plaintiffs in error; but the court did instruct the jury upon the points of the case requested, only in language somewhat different from that which they were requested to use. The language used by the court, in each particular upon which the court was asked to give instructions to the jury, was perhaps a material qualification of the rule of law proposed and insisted upon by counsel for plaintiffs in error.

If the instructions they requested to be given to the jury were strictly correct and legal, relating, as they did, directly to the issue, it was their right to have the instructions so given, as proposed by them.

In regard to the first proposition on the part of the defense, that McCullough was not in fact under duress, counsel for plaintiffs in error seem rather to complain of the finding of the jury, as contrary to the evidence, than of any erroneous holding of the court as to any point of law. And we have already remarked upon the action of the court in overruling the motion for a new trial.

The instructions of the court to the jury, touching the nature of a duress and its effect upon a contract obtained thereby, we think correct; and we do not understand counsel as particularly excepting to the charge of the court in that regard.

307] *But upon the second proposition, that if the contract was obtained by duress, it was afterward ratified, the court was requested to instruct the jury that if they should find that sufficient time had elapsed after the contract was obtained from McCullough, previous to the purchase by plaintiffs in error, for him to have notified them not to purchase, and he remained silent, such silence was evidence of a ratification. We think such instruction, without any qualification, would not have been strictly correct.

Upon this point of the case, the court instructed the jury that if they were satisfied that the plaintiff, with a full knowledge of the facts and of his rights, ratified the contract, he could not recover; that, if he stood silently by, after the contract or assignment had been so obtained from him, and after he was released from duress, and allowed the then defendants to purchase the property, he could not recover in that action. And we think the charge of the court in that respect unobiectionable.

Doolittle & Chamberlain v. McCullough.

From a careful examination of the record, we are unable to discover any substantial error going to affect the right of recovery on the part of defendant in error.

1

But in relation to the rule of damages, as to the amount to be recovered, we regard the instructions of the court to the jury as exceptionable in one particular.

The record shows that previous to the avoidance of his assignment or contract on the part of McCullough, the plaintiffs in error had purchased the property, and paid the price specified by the contract according to its terms, to the hands and creditors of McCullough. His agent, Hickey, had sold the property to the plaintiffs in error, with McCullough's written authority and instructions in his band, and according to the terms thereof, and received therefor the payment of the $250 to the workmen, the creditors of McCullough, and obtained their acquittance and receipts to McCullough. This was the manner of payment for the property proposed by McCullough to plaintiffs in error before the difficulty with his workmen; at which time he was requesting plaintiffs in error to purchase this property, and from the purchase money to pay his indebtedness to the hands.

*Under this state of facts, the court instructed the jury [308 that they should regard the value of the property at the time of the conversion as the rule of damages, "without credit for the amount paid by the defendants to the hands," for plaintiff.

The value of the property, it is true, in an action of trover, is the general rule of damages. But under this generai rule there are certain exceptions as well established as the rule itself. These exceptions rest upon the same equitable principle that the rule does. That principle requires that the plaintiff should recover a just compensation, and no more, for the damages which he has actually sustained by the conversion of his property. If the property has been retaken, or returned, after taken, in whole or in part, such fact is always regarded as an exception to the general rule, that the full value of the property should be regarded as the amount of damages to be recovered; and the facts are permitted to be given in evidence in mitigation of damages.

Resting upon the same principle, is the case where property has been taken in the exercise of a supposed right, and sold, and the proceeds paid for the benefit of the owner, in discharge of his indebtedness, when it afterward turns out that the taking and sale

Schaffer and Smith v. Waldo, Barry & Co.

were without authority. And we regard the facts in such a case as constituting an exception to the general rule, that the plaintiff is entitled to recover the full value of the property as the amount of his damages.

If the proceeds of the sale of the property had been paid to the owner, wherein would it have differed from a return of the property, or part thereof to him? And we are not able to perceive why a payment of the proceeds of the property for the owner, where he has unquestionably received the benefit of such payment, and the proceeding on the part of the defendant has been in good faith, should not also go in mitigation of damages.

This view of the subject, which we regard as applicable to the case, seems to us fully sustained by the decisions of other courts, among which see Price v. Benjamin, 14 Pick. 356; Baldwin v. Porter, 12 Conn. 437; Clark v. Whittaker, 19 Ib. 330; Curtiss v. Ward, 20 Ib. 204; Froshay v. Ferguson, 5 Hill, 154.

309] *Under this view of the case, we should feel constrained to reverse the judgment below, had the cause of reversal been permitted to remain. But during the pendency of this proceeding in error, the defendant in error, by counsel, on leave of the court, appears and remits from the judgment of $847.87, rendered by the district court, as of the date thereof, the sum of $250, so paid for him from the proceeds of the sale of said property, with interest from the time of payment, amounting at the date of judgment to $323; leaving due upon the judgment, at the rendition thereof, only $524.87.

The judgment of the district court is therefore affirmed for that sum, and costs of that court, but at the costs of the defendant in error in this court.

BARTLEY, C. J., and SWAN, BRINKERHOFF, and SCOTT, JJ., concurred.

SALVATOR SCHÆFFER AND THOMAS SMITH v. Waldo, Barry & Co

MOTION for leave to file petition in error.

Reynolds & Co. v. Morris.

A. G. Thurman, for the motion.

J. R. SWAN, J. The plaintiffs were non-residents, and gave no security for costs at the commencement of the suit; but after the return of summons, and before motion by the defendants, L., without order or leave of court, entered on the appearance docket, "I am security for costs." On motion to dismiss for want of security, L. appeared and consented to the order of the court, recognizing him as surety, and the court approved of L. as surety, and overruled the motion to dismiss.

The defendants moved to quash the writ because it was served on the return day, and not returned by the sheriff until two days *after the return day. Motion overruled, and defendants ex- [310 cepted, and afterward filed their answer.

Held: That L. became surety by appearing in court, and the approval of the court, etc., and that the defendants waived the objection to service on the return day, and return of the summons, by filing their answer.

Motion overruled.

BARTLEY, C. J., and BRINKERHOFF, SCOTT, and SUTLIFF, JJ., concurred.

JAMES REYNOLDS & Co. v. THOMAS MORRIS.

Where a bill in chancery alleges that an entire tract of land was purchased by the agent of complainants, and a conveyance taken to and in the name of the agent, but was paid for wholly by the satisfaction of a judgment against the vendor, belonging to complainants, and a resulting trust in the entire tract is thence claimed in favor of complainants, but the proof shows that the satisfaction of such judgment was but a part of the consideration for the conveyance, the remainder of the consideration having been paid from the individual funds of the agent: Held, that the variance between the allegations and proof was material and fatal; and there being no application for leave to amend before the hearing, the bill was properly dismissed.

BILL of review. Reserved in Clermont county. This is a bill of review, filed in the district court of Clermont county, and seeks the reversal of a decree of that court, rendered

Reynolds & Co. v. Morris.

at its May term, 1854, dismissing the complainant's bill in the original case.

The case made by the original bill is, in substance:

That in 1823, the complainants were the creditors of one Andrew Megrue, to the amount of $351.07, for which sum they held said Megrue's note, dated May 10, 1823; that on the 31st of December, 1823, they placed said note in the hands of the defendant, Thomas 311] Morris, for collection; and in order to enable him to *collect it, they indorsed said note, taking at the same time defendant's receipt, obligating him to collect said note for them, and to pay the money over to them, or return the note; that said Andrew Megrue afterward departed this life, and that one Jonathan Megrue was duly appointed his administrator.

That said Thomas Morris, at the August term of the court of common pleas for 1826, recovered a judgment upon said note for the sum of $419.64. And that afterward, in 1839, the said Morris received from said Jonathan Megrue a deed for twenty-two acres of land, in full satisfaction of said judgment; that he entered into the possession of the same, and has taken a large quantity of wood, timber, and stone therefrom, and appropriated the proceeds thereof to his own use, amounting to $1,000; and that he has enjoyed the use and occupation, and received the rents and profits arising therefrom.

That said Morris, wickedly contriving to cheat, defraud, and injure complainants in the premises, had said conveyance made to himself, instead of having it made to complainants; that he refuses to convey the same to complainants, and refuses to render an account for the wood, timber, and stone taken by him from said land; and that he refuses to account for rents and profits.

The prayer of the original and amended bill is, that said Morris shall be directed to convey said land to the complainants; that an account may be taken of the value of the wood, timber, and stone, and of the rents and profits; and that he may be decreed to pay to complainants the amount thereof; and for general relief.

The answer does not deny the reception of the note, and the giving of the receipt therefor, by the defendant; but claims, in substance, that the defendant purchased said note of complainants, and was to pay them therefor in pork, whatever he might choose to give them for it. That he expended large sums of money in the prosecution of said claim, in the employment of counsel, for