The following questions are presented herein for consideration:
(1) Was there error in overruling defendant's demurrer to plaintiffs' petition?
(2) Did the lower court err in its instructions to the jury?
1. It is insisted by plaintiff in error, defendant below, that his demurrer should have been sustained on the ground that the petition did not allege that the note represented an indebtedness then due to the plaintiffs, or that it had been paid, or that it was valid and would become due. In the case ofHarlan et al. v. Brown, 4 Ind. App. 319, 30 N.E. 928, it was held that a complaint alleging that plaintiff was the owner of a note which was past due, and, whilst he was intoxicated, the note was wrongfully taken from him without his consent, and the defendants subsequently delivered it to the makers for a new note, constituted a cause of action against the defendants for the conversion of the note; the defendants in the action for conversion being the makers of said note. In the case ofPierson v. Townsend et al., 2 Hill (N.Y.) 550, the action was for trover, in that the plaintiff on, etc., at, etc., was lawfully possessed as of his own property of a certain contract, bearing date May 21, 1841, for the delivery of *Page 559 possession to one Charles Tripp or his assigns of three dwelling houses situate in the city of Albany (giving the particular location and description of the houses), which said contract was of great value to the plaintiff, to wit, of the value of $7,000 of lawful money, and then alleging a loss and conversion of the contract in the usual form. There was another count substantially the same as the first, except that the contract was stated to be for the delivery of possession of the houses to the plaintiff. The defendant's demurrer was sustained in that case on the ground that the parties to said contract were not given, nor was it averred to be in writing. In the case at bar the plaintiffs alleged that they were the owners of the note in question, that it was wrongfully taken and converted by the defendant, and that the reasonable market value thereof was $108.72. This seems to be sufficient at least against a general demurrer.
2. It is contended by the plaintiff in error that instruction No. 3 given by the court was erroneous, wherein the court stated that the plaintiff in error would not be justified in the possession of the note and its retention because of a failure of a warranty of said buggy, for the purchase price of which the note retained by the defendant was given unless from the evidence it was found that the retention of said note was by and with the consent of the plaintiffs, or their duly authorized agent, in a rescission of the contract of purchase. This instruction seems to be predicated upon one of the issues joined. No other character of rescission was pleaded on his part. The contention on the part of the plaintiff in error that the court erred in giving instruction No. 4, as to the measure of damages the plaintiffs would be entitled to recover, to wit, the face value of the note, with interest thereon at the rate of 8 per cent. per annum, appears to be well founded. Counsel for defendants in error concedes in his brief that, as a matter of defense, the defendant could have shown in the court below that said note prior to the time of the alleged conversion had been paid. Now, on the same theory, why, under the defendant's denial that the note was not of the value as alleged by *Page 560 plaintiffs, could he not show a partial payment or a partial failure of consideration? Because the reasonable value of the note would be nothing more than the amount the plaintiffs would have originally been entitled to recover thereon. If the plaintiff in error got possession of the note wrongfully, fraudulently, and tortiously, that of itself, regardless of whether or not the note was of any value, would have entitled the plaintiffs in the court below to have recovered nominal damages, and, in addition thereto, the reasonable value of said note; for, if said note had been paid in full prior to the time of its conversion, or if it had been paid in part, or if its consideration had in part failed, there was an available defense to that extent. Its reasonable or market value would be nothing more than the amount that was entitled in law to be recovered thereon. This instruction given by the court below was duly excepted to. There being evidence in the record tending to show a partial failure of consideration, which evidence was received without objection or exception on the part of either side, though it would seem under the general denial to be admissible, renders said instruction prejudicial to the rights of the plaintiff in error. Plymouth Cordage Co.v. Smith. 18 Okla. 249, 90 P. 418.
It is not essential to pass on other questions raised, as the same will not likely arise on another trial.
Let the judgment of the lower court be reversed, with instructions to grant a new trial and proceed in accordance with the views herein expressed.
All the Justices concur. *Page 561