I concur with Mr. Justice Miller that there was a conversion of. the plaintiff’s stock; that the stock when converted was worth $45,125; -and that the plaintiff is entitled to recover from the defendants 'the damages sustained by him by reason of that conversion.; The complaint alleges that the .defendants purchased this stock for the plaintiff on July 27, 1907, at $90 per share, for which the defendants paid the purchase price amounting to $45,000; that upon the same day plaintiff deposited with the defendants the sum. of $5,000 as margin-upon-said transactions and as part payment of the purchase price of said shares; that the defendants agreed to ' advance to the plaintiff the balance of the purchase price of said shares and. to hold - the said shares as collateral security for such advance; that on the-same day, July 27, 1907, the defendants converted the stock to their own-use;. that by reason thereof plaintiff has been damaged by the deféndants in the.sum.of $45,327.50 less $15,000 advanced by the said copartnership remaining unpaid by. the plaintiff, and demands judgment for the sum of $30,337.50.
The defendantshaving converted the plaintiff’s stock and the conversion having consisted of disposing of the stock and receiving therefor a sum of money in excess of that for which the stock had been purchased, plaintiff had an election to ratify and confirm this disposition of the stock and would' then have been entitled to receive the amount received by the defendants upon this disposition of the stock, or lie could treat the. disposition of the stock by the defendants as a conversion and sue for the damages sustained by reason thereof. He elected to treat the disposition of the stock as a con- \ version and sued for the damages sustained. The only question . •\upon which I disagree with my associates is as- to' the measure of ' damages to which the plaintiff was entitled.
As I understand the rule of damages in conversion the transaction must- be treated as of the time of the conversion, and under the rule of damages as laid down in Baker v. Drake (53 N. Y. 211). the damages would be the difference between the value of the stock , at the date of the conversion and the value of the stock at a. reasonable time after the conversion within which the 'plaintiff could repurchase the stock; there has never been a time since the conversion at which the stock sold for a greater price than at the time of *564the conversion and, therefore, this rulé does not apply. Then the rule, as I understand it, is that the plaintiff would be entitled to recover the value of his interest in the stock at the time of the conversion. The real situation disclosed was.that the defendants had undertaken to purchase for the plaintiff 500 shares of this stock and had actually purchased it for his account and paid therefor the sum of $45,000. Of that amount the plaintiff had paid $5,000, remaining indebted to the defendant for the sum of $40,000 for which amount the defendants had a lien upon the stdck.
The referee found that on July 29, 1907, the defendants received the said 500 shares of ‘ stock so purchased for the account of the plaintiff and on the same day delivered the said stock to another firm of brokers to fulfill an obligation of the defendant's to 'deliver such stock to these brokers, and received from said brokers the sum of $45,818.20. This sum must, therefore, be considered as the value of the. stock at the time of the conversion. But the plaintiff’s interest in the stock.'was subject to a lien in favor of the defendants for the sum of $40,000, and the plaintiff’s interest, therefore, was the sum of. $45,818.20 less .$40,000 to which the 'defendants were entitled, for-which sum plaintiff would have been entitled' to judgment if the conversion had been then discovered and the action then commenced..
. I cannot see that any act of either the plaintiff or the defendants subsequent to this, conversion can have the effect of enhancing or reducing the amount of damage that the plaintiff sustained "by reason of the conversion of the stock. .The rights of the parties as dependent upon the conversion were then fixed and when the plaintiff elected to treat this disposition of his stock as a conversion" he was entitled to recover the damages that he then sustained by reason of the conversion, and that sum upon the undisputed facts was $5,818.20. This seems tó be sustained by Baker v. Drake (supra), where it is said: “ An amount sufficient to indemnify.the party injured for the loss, which is the natural, reasonable and proximate result of the wrongful act complained of * * * is .the measure of damages, which juries are usually instructed to award, except in cases where punitive damages are allowable.. * * * The plaintiff did not hold the stocks as an investment, but the object of the transaction was to have the chance of realizing *565a profit by tlieir sale. He had not paid for them. The defendants had supplied all the capital embarked in. the speculation, except the comparatively trifling sum which remained in their hands as 'margin.' Assuming that the sale was in violation of the rights of the plaintiff, what was the extent of the injury inflicted upon him? He was deprived of the chance of a subsequent rise in price. * * * Suppose the stock, instead of advancing, had declined after the sale, and the plaintiff had replaced it, or had full opportunity to replace it at a lower price, could ■ it be said that he sustained any damage by the sale; would there be any justice or reason in permitting him to lie by and charge his broker with the result 'of a rise at some remote subsequent period? * * * If the broker has violated his contract, or disposed of the stock without authority, the customer is entitled to recover such damages as would naturally be sustained in restoring himself to the position of which lie has been deprived. He certainly has no right to be placed in a better position than he would be in if the wrong had not been dope.” What was converted was the stock subject to the lien. By the conversion the defendants became liable for the value of the stock less the lien and having elected to treat the disposition of the stock by the defendants as a conversion, and having brought this action to recover his damages by reason of the conversion I think that is the limit of the recovery. The subsequent payments by the plaintiff to the defendants could have no effect upon the damage sustained-by the conversion. Undoubtedly for that money the plaintiff would have a cause of action against the defendants and in a proper action would be entitled to judgment for such payments. In this action, which is strictly for a conversion of the stock on the 29th of July, 1907, plaintiff’s right to recover is limited, I think, to the damages sustained by that conversion upon the day when the stock was converted. '
I am unable to agree, therefore, with the proposed modification of the judgment appealed from. • '
Judgment modified as directed in opinion, and as modified affirmed, with costs to appellant. Settle order on notice: