This action was brought to recover damages for refusing to deliver certain bonds. The question arising in the case is as to the proof of damage, and the ruling of the judge that the plaintiff could only recover nominal damages.
The plaintiff, to prove the value of the bonds, offered to show that they were paid in gold by the company issuing them. This was excluded by the court. He also offered to prove what gold was worth in currency, at that time.
I think this evidence was admissible. The plaintiff could recover the value of the converted property at any time between the conversion and the trial j and the fact that they had been paid in gold was admissible to show what sum the plaintiff had lost by the wrongful act of the defendant.
I think, also, the judge erred in limiting the recovery to nominal damages. There was proof of their value if paid in gold. It is true that was the opinion of the witness, merely, and not an actual sale. But where there are no actual sales of an article, a witness may give his opinion of the value of such article. Simpkins testified that the bonds were worth par, in gold, as collateral security ; that he had borrowed on them at that rate ‘ their value in currency was 260. He also states previous sales in gold at 90 to 95. He adds that their value was 240 to 260 in currency, not that he knew of sales to that amount. This evidence was in the case, and the judge refused to strike it out. It was before the jury, and certainly warranted the conclusion that the bonds were worth more than par in currency. I do not consider the legal tender act passed by congress, as excluding this evidence from the consideration of the jury. The charge of the court seems to have been founded on that statute. I *395think the evidence should have been submitted to the jury, and that it should have been left with them to assess the damages, free from the limitation which the court put upon them.
The true question was not what the obligors could be compelled to pay for them, but what they actually did pay, in ascertaining the plaintiff’s loss. Suppose the defendant had retained the possession of the bonds until their payment, would it not have been admissible to prove that fact, and that the defendant received on such payment, gold to the face of the bonds ? I cannot think that it was intended by the legal tender act, to enable an agent to receive for a claim, gold coin, and relieve himself from liability by payment in currency. Not that a contract may be violated,, and the party in default relieve himself from damages by paying in currency for what he has realized in gold.
The question will be presented more forcibly by suggesting the case of one who has a sum of money in gold coin to deliver to another, which he refuses to deliver, and converts to his own use. Would justice be satisfied by holding the defendant excused on paying that amount, in currency ? The same principle must govern here.
A new trial should be ordered, costs to abide the event.
Leonard, P. J. concurred.