I concur in the opinion of Mr. Justice Merrell that the decision of the trial justice was contrary to the weight of the evidence, in holding that the defendants converted the stock of the plaintiff. In my opinion the plaintiff failed to establish by a preponderance of the evidence that the defendants agreed to carry the stock for him until a transfer thereof should be made on the books of the company and the certificates of stock so transferred should be received by the defendants. On the contrary, in my opinion the evidence on behalf of the defendants shows that the plaintiff promised to pay the balance due on or before Wednesday, May 2, 1917, and on plaintiff’s failure the defendants had the right to sell the stock to satisfy their lien for the moneys" advanced. The trial justice should have directed a verdict for the defendants.
In my opinion the court would not have been justified in dismissing the complaint upon the ground that in accepting the defendants’ check for $1,342.98, cashing the same and retaining the proceeds thereof, the plaintiff ratified the sale of his stock by- the defendants.
The action was for a conversion. The conversion would be complete if the defendants made an illegal sale of plaintiff’s property, and plaintiff became entitled to his damages, which would be the full value of the property. A subsequent return of the property, or the turning over of the proceeds of the sale thereof, would only go to the mitigation of the damages and not to the defeat of the cause of action. (People v. Bank of North America, 75 N. Y. 547, 564.)
Judgment reversed, with costs to defendants, and complaint dismissed, with costs.