Work and labour expended on chattel. the whole sum which he would have received from the purchaser. In all these cases, however, there has been no dispute about the principle. They simply afford illustrations of the various kinds of evidence which a jury may be permitted to take into consideration. The damages being fixed at the date of the wrongful act, a subsequently plaintiff cannot take advantage of any increased value given to the chattel by work and labour subsequently expended upon it. In Reid v. Fairbanks (a) the defendant had converted a half-built ship belonging to the plaintiffs and afterwards completed her. It was held that the measure of damage was the value of the vessel in its unfinished condition. On the same principle, if a portion of realty is severed and the party entitled elects to sue for it as a chattel, he can at most recover only its value when first severed. He cannot, for instance, when coal has been unlawfully taken, recover its value at the pit's mouth, but only at the bottom of the mine (b). He must deduct the expense of raising though not of winning (c). Severed realty. Fixtures. Securities for money. Where fixtures wrongfully severed are sued for as chattels the measure of damage is their value as such, and not the damage to the realty (d). The measure of damages for depriving the plaintiff of a security for money is its value at the time of the wrongful act. In the absence of anything to the contrary, it may be taken that the security is a good one and worth the whole amount which the plaintiff might have been entitled to receive on it from the parties liable, and obviously a defendant cannot be permitted to avail himself of any diminution of value which it may have suffered through his own wrongful conduct (e). If, however, owing to the insolvency of the parties, or for any other reason, the security is depreciated, it would of course be unjust for the plaintiff to recover full nominal value (ƒ). Where there is a market a jury (a) (1853) 13 C. B. 692. (b) As to law in certain American States, see unte, p. 259. (c) See below, p. 358. (d) Clarke v. Holford, (1848) 2 C. & K. 540; Barf v. Probyn, (1895) 73 L. T. 119. (e) Delegal v. Naylor, (1831) 7 Bing. 460; M'Leod v. M'Ghee, (1841) 2 M. & G. 326; Alsager v. Close, (1842) 10 M. & W. 576. (f) See Sedgwick on Damages, 7th ed. vol. 2, pp. 465-6; Delegal v. Naylor, supra. would probably give damages according to the current quotation at the time of the cause of action. It is no evidence of the value of a security in fact worthless, that money, either by mistake or otherwise, has in fact been paid upon it (a). It is submitted, however, that the general proposition stated above must be taken with this reservation; that where the defendant is in a fiduciary position towards the plaintiff, as, for instance, a stockbroker in regard to his client, the measure of damages for a tort, when there is no laches on the part of the plaintiff, would be the highest price of the security between the date of the wrongful act and the time of bringing the action (b). In respect of the loss of title deeds a plaintiff is entitled primâ Title deeds. facie to recover the value of the estate which they represent (c), the damages being, of course, reducible to a nominal sum on their return. What is the measure of damage where it is out of the power of the defendant to make return, does not appear. It is said that if he has destroyed the deeds he is still liable for the full value of the property (d). But no right of action prior to redemption accrues to a plaintiff in case of the loss of, or damage to, title deeds deposited as equitable security to cover an advance (e). Nor is there apparently, apart from special contract, any covenant on the part of a mortgagee to take care of title deeds during the continuance of the security (ƒ), although the statutory right of a mortgagor to inspect his title deeds (g) may, by implication, be construed as raising a duty on the part of the mortgagee to exercise reasonable care in their custody; and the wilful or negligent destruction of deeds by a defendant entitles the plaintiff to recover damages commensurate with his loss (h). of value Where there is a doubt about the value of a chattel which has Presumption passed wrongfully into the possession of a defendant, he must against either produce it or account for its non-production, otherwise it wrong-doer. Special damage. Interest. Where chattel returned. Damages where plaintiff relies on title only. will be assumed against him that it was of the highest possible value (a). Where the circumstances are such that a defendant must be aware that the chattel converted by him is required for some particular purpose, he may be liable to pay special damage in respect of the failure of that purpose. Thus, where a carpenter lost his employment through having his tools taken from him, it was held that he might recover damages for the loss of the employment as well as the loss of the tools (b). So on a claim for the wrongful detention of stock which the plaintiffs had intended to sell, but were prevented from selling by the act of the defendants, substantial damages on account of the fall in the stock were recovered (c). But the mere capacity for profitable use is part of the value of a chattel, and therefore the loss of such use is not a separate head of damage, for if so the plaintiff would, pro tanto, recover twice over (d). A jury may, however, if they think fit, give damages in the nature of interest on the value of the goods from the date of the wrongful act (e). If property fluctuating in value is returned, damages to the amount of its fall in value may be recovered. This really only gives effect to the general rule that the measure of damage is fixed at the time of the wrongful act (ƒ). If the plaintiff relies simply upon a right of possession depending on his property he can recover only according to the amount of his interest. Therefore, if one of several coowners of a chattel sues for its conversion, his damages will be an aliquot share of the total value (g). But where several owners in common of a chattel concur in a delivery of it to a third party, no action in detinue will lie against the latter when the joint owners differ amongst themselves respecting its re- or non-delivery (h). (a) Armory v. Delamirie, (1721) 1 Stra. 505. (b) Bodley v. Reynolds, (1846) 8 Q. B. 779; explained France v. Gaudet, (1871) L. R. 6 Q. B. 199. (c) Williams v. Peel River Land & Mineral Co., Limited, (1886) 55 L. T. N. S. 689; and see Michael v. Hart, (1901) 2 K. B. 867. (d) Reid v. Fairbanks, (1853) 13 C. B. 692. (e) 3 & 4 Will. IV. c. 42, s. 29. 318. (g) Bloxam v. Hubbard, (1804) 5 East, 407. (h) Attwood v. Ernest, (1853) 22 L. J. C. P. 225. relies on possession. If the plaintiff relies upon his actual possession, and the Where he action is against a stranger, the generally received view is that he is entitled to recover exactly the same measure of damages as if he were the absolute owner, upon the ground that a wrongdoer is not to be heard to deny the title of the injured party. And this view has been generally regarded as equally applicable whether the plaintiff obtained his possession by finding, wrongdoing, or bailment. As regards the two former kinds of possession, the received view is scarcely open to question, for to hold otherwise would be "an invitation to all the world to scramble for the possession " (a). Whilst in the third form of possession Action by mentioned above, that of a bailee, a similar rule has at last been conclusively arrived at, after many vicissitudes of high judicial and juridical opinion, the law upon the subject being crystallised by the decision of the Court of Appeal in the case of The Winkfield (b), in which it was held that "possession with an assertion of title, or even possession alone (which in the case of a bailee), gives the possessor such a property as will enable him to maintain action against a wrong-doer; for possession is primá facie evidence of property " (c). Nor is this right of action limited to the amount of the liability over of a bailee to his bailor, the right being innate and incidental to the possession, and not to the liability over. Consequently as against a wrong-doer the right of a bailee gives him a complete title to recover the full value of the chattel, although as between himself and his bailor, to whom he stands in a fiduciary position, the right carries with it the correlative duty on his part to account to the true owner of the chattel for (a) Per Lord Kenyon, Webb v. Fox, (1797) 7 T. R. p. 397. In the case of finders and wrong-doers, the allowance of a right to recover full damages presents great difficulty; for if after such damages have been recovered the true owner appears and sues the defendant, the latter will have to pay over again, and may be unable to recover back from the first plaintiff the damages which he had been compelled to pay him (Marriot v. Hampton, (1797) 7 T. R. 269). Moreover, in the action for recovery of possession of land, which (b) (1902) P. D. 42, C. A.; and see (c) 2 Wms. Saunders, 47 f. bailee. The Winkfield. The its full value, or such proportion of its full value as he may himself have derived from the tort-feasor. Nor does the fact that bailor as well as a bailee has a right of action against a wrongdoer logically detract from that innate right to demand compensation for a tort which follows as a necessary corollary to the right to legal possession. The fact that damages, amounting to satisfaction in full, have been recovered by the bailor or by the bailee, does not do away with that right of action which is innate to the one by reason of his ultimate title to the goods, and to the other by reason of his legal possession; it merely acts as an estoppel to further action against the defendant in respect of that particular tort for which the damages have been recovered, upon the well-known principle of law Nemo debet bis vexari, pro una et eadem causa, although where "both the bailee and the bailor have suffered damage by the wrongful act of a third party each may bring a separate action for the loss suffered by himself" (a). Up to the date of the decision in The Winkfield it must be conceded that the rulings in the various cases which have arisen on this particular point are quite irreconcilable. For, though the consensus of opinion of both the judges and the text-books is in favour of the ultimate decision arrived at by the Court of Appeal, in the comparatively recent case of Claridge v. South Staffordshire Tramway Co. (already referred to), an exactly opposite decision was given by the Court, and leave to appeal refused; it being held in this case that the plaintiff, who was bailee of a horse which was injured while in his possession by the negligence of the defendants, could only recover nominal damages, he being under no liability to his bailor for the injury done to the chattel whilst in his custody. O. W. Holmes, jun., in his very learned disquisition on "The Common Law" (b), attributes the principle underlying the right of the bailee to sue a tort-feasor for the conversion of, or for damage to, a chattel in his possession, to an early Germanic (a) Claridge v. South Staffordshire Tramway Co., (1892) 1 Q. B., Hawkins, J., at p. 424. As to the measure of damages recoverable, see The Greta Holme, (1896) P. 192, C. A. (b) Lecture V., " Bailment." |