(dissenting.) I am of opinion that this case was correctly disposed of at the circuit.
Whether the true theory of the action is that the defendant is liable by reason of his neglect to purchase the bonds for the plaintiff, or that the plaintiff became the owner of the bonds through the defendant’s purchase, and the defendant is liable for their conversion, in either case the measure of the plaintiff’s loss is1 the excess of the value of the bonds over and beyond the sum which the defendant paid for them. There is no legal evidence that the value of the bonds ever *396exceeded the sum paid for them by the defendant, and consequently the plaintiff is not entitled to recover more than nominal damages, in any aspect-of the case.
Prima facie, each of the bonds, forty in number, was worth only the sum payable by its terms, to wit: 500 dollars, or 20,000 dollars in the aggregate, being 3000 dollars less than the amount paid by the defendant. This was not conclusive, however, and it was competent for the plaintiff to show, if he could, that the bonds were worth more than par. He undertook to prove that they were worth much more than the defendant paid for them, but the testimony produced by him was insufficient for that purpose. The proof showed that the bonds were issued by a corporation in the state of California, known as the San Francisco Water Works Company. They were issued in 1859, and were made payable in April, 1864. The whole amount of bonds created was 150,000 dollars, but the amount actually issued by the company was only 84,500 dollars. The bonds were never sold in public market, and there was no market price for them in San Francisco, New York or elsewhere. The only private sales shown, were the one in controversy, and four others which took place in 1860 or 1861, at San Francisco, at prices ranging from ten per cent below par, in gold, to six per cent above. In the absence of evidence that the bonds had a market™value exceeding the price paid by the defendant, the plaintiff proved, or offered to prove, • that customarily all transactions in California are in gold currency, unless otherwise expressly agreed ; that the receipts of the company for water dues were collected in gold; and that the company, in pursuance of a resolution of their board of directors, paid in the like currency other bonds of the same issue as those in suit, upon presentation. The plaintiff also offered to prove the market price of gold in July, 1864, and it may be assumed, for the present purpose, that between the time.of the defendant’s purchase in February, 1864, and the commencement of this suit, gold was sold in market at a pre*397mium of 140 per cent—that is, at 240 per cent in paper currency. But all this testimony fell short of establishing that the bonds had any other than their prima facie value. They were not, by their terms, payable in gold ; and if they had been so payable, the company, nevertheless, would have had a right to satisfy them by paying, or offering to pay them, in legal tender notes. (Rodes v. Bronson, 34 N. Y. Rep. 649.) Payment by the company, of more than the face of the bonds, would have been a mere gratuity. If it had been shown, however, that the probability, or even expectation, that the company would pay the bonds in gold, gratuitously, had raised their price in market above their par value, the case would have been materially different; but there is no evidence that such was the fact.
[New York General Term, April 3, 1867.The testimony of the plaintiff, and of his brother, that the bonds were worth in currency whatever gold was worth, to wit, from 240 to 260 per cent, adds nothing to the plaintiff’s case. It is apparent from the cross-examination of these witnesses that they had no facts to go upon, except those above stated, and that their testimony on the subject of the value of the bonds is simply the expression of an opinion, or rather of a truism, that if the bonds were in fact paid in gold, they were worth, to the holder, what gold was valued at in the market.
The judgment should be affirmed.
blew trial granted.
Leonard, Ingraham and J. C. Smith, Justices.]