The opinion of the court was delivered, January 7th 1868, by
Thompson, C. J.1. A sufficient answer to the 1st and 4th assignments of error in this case is, that the plaintiffs in error, who were defendants below, claimed to hold the property in question under an alleged purchase from the vendors of the plaintiffs below. This was the defendants’ theory, and without they could make it good, their title to the property did not exist. Who were the legal owners under these vendors, was the question when the witnesses were offered. They were competent witnesses for either ; on the defendants’ theory, their interest being equally balanced, they were liable in case of failure of title to either of them: Miller v. Fitch, 7 W. & S. 366. As to requiring the plaintiffs’ counsel to state specifically what they intended to prove by the witness Shoup, that was entirely wdthin the discretion of the court, and it is not assignable for error that it was not done.
2. We think the court erred in the admission of that part of Whateley’s deposition which related to the price of timber in Cincinnati, in November and December of 1865. The damage by the conversion of the defendants, if they were guilty, was to be estimated in view of the time, place and circumstances of it. . If Cincinnati had been the only market for such timber, on the Western waters, then testimony as to the price there, deducting expenses in running the lumber, might have been proper. But this was not the case. There was a market at Pittsburg, with its prices current, for such property, and if the plaintiff was iiidem*458nified for the loss there, upon no principle could the law be regarded as unjust to them, or be called upon to give them more.
But it is answered that this testimony was, after having been received and read to the jury under objection by the defendants, voluntarily withdrawn by the plaintiffs. That is true ; and did we see any caution to the jury against its effect, and not perceive that it must have been weighed by the jury in making up the verdict which was rendered, we might treat the evil of admission as cured by the retraction of the testimony and the caution of the court. But in -the absence of aggravating circumstances, it is not easy to see how the verdict could have been made up excepting on the basis, or at least partially so, of the evidence of prices at Cincinnati.
For the reason given this was wrong ; and if there were nothing else in the case, we would still be induced to think that justice would require that it should be sent back to be tried on principles more consonant with the law and practice. We therefore hold this assignment of error sustained.
2. But there are other grounds of reversal in this case; and the first, is the answer of the court to the plaintiffs’ 1st and only point. It was an unqualified affirmance as a matter of law, that the plaintiffs were entitled to recover; with a reference to the jury to consider the circumstances in aggravation of damages, of which we discover no evidence.
It depended on the testimony whether the plaintiffs were entitled to recover or not. Each party relied on a purchase from common vendors, the defendants being prior in time, if purchasers, at all. Which was right and which wrong, depended on the testimony of witnesses. The defendants had a case had it not been for the testimony of the plaintiffs’ witnesses; and there were reasons to be considered in regard to the credibility of these witnesses inseparable from their position. Without enlarging or multiplying words, we think the withdrawal of everything but the question of the amount of damages from the jury, as the answer of the point clearly did, was error under the circumstances of the testimony.
The other portion of the point in reference to damages on the ground of outrage in the taking the property, might, as an abstract proposition, have been right; but even this is somewhat in dispute on authority. But we see no evidence of which to predicate it in this ease. To submit a ground of recovery to a jury, without facts, is an error not more to be deprecated under the rules of law and practice, than it is by the instincts of justice. Whatever may be the ultimate rights of the plaintiffs, and of that we say nothing, they were not in a position to expect defendants to defer much to their claim of being purchasers — one of them was *459somewhat active in the sale to them, and claimed a portion of the proceeds and received a note for part of the purchase-money, to the extent of their alleged claim on the lumber, against Shoup and Wilkinson, the owners. If all this did not amount to an equitable estoppel as to their claim under a subsequent purchase, it might somewhat excuse the defendants in disregarding their claim, and running off the lumber after they had notice of it. We think the assignment of error on the point is sustained on both grounds.
3. We are of opinion also, that there was error in not affirming the defendants’ 1st point. It was not an abstraction. It had reference to the facts in evidence, and if there be cases in which more than compensation may be allowed in trover, and I admit there may, they are in cases of heir-looms, family pictures and the like, taken and converted, and also where there are circumstances of fraud, violence and outrage.
It has not been an unusual thing in practice, to allow damages beyond the actual value of the goods converted, and interest; although the general rule undoubtedly, is the value of the goods and interest: 6 S. & R. 430; 3 Watts 333 ; 5 Wright 291. This may be exceeded, but not without the element of wilful wrong, fraud or outrage. ' While it must be admitted that there is a seeming generality in the point, as if looking to a denial that in trover more than the value of the property and interest can be recovered, yet it was evidently intended to refer exclusively to “ this action” of trover, and should have been so answered, and answered affirmatively in view of its circumstances.
4. We think the court was substantially correct in its answer to the defendants’ 2d point. Of what consequence was the doctrine of estoppel to the defendants, if they held under a good and valid sale ? If they were not purchasers at all, Shoup and Wilkinson could sell to whomsoever they pleased, and we see not why the plaintiffs might not purchase as well as other parties. They had asserted neither right nor title in the matter, upon which the doctrines of estoppel could apply. Whether their purchase, after what had transpired, was exactly up to the standard of honorable dealing, it is not necessary to say ; but if it were not, this alone would not be a ground of estoppel. They did not sell or pretend to sell the property, or any portion of it, to the defendants. Had they done so, a different question might have arisen. But this need not be discussed now. We have said enough to show that we do not think the 7th and 8th assignments are sustained.
5. Nor do wre think there was material error in refusing to answer the defendants’ 3d point. Not because so involved as to be incapable of being understood, but because if answered at all, we think it must have been answered negatively. The joining in the sale to defendants, by one of the plaintiffs, was, as we under*460stand it, for the purpose of protecting an interest not in the timber as owners, but on account of some services in regard to it. It was not a sale by them of lumber, but a securing on the footing of a sale by an alleged agent of the owners, of a claim against it. If that sale was without authority, and the principals could repudiate it, the plaintiffs could hardly collect their note from the defendants, for the consideration would then have failed. In fact they placed themselves in statu quo, by giving up the note, and were not claiming at all as vendors, and also as vendees, of the timber. But we have said enough elsewhere, if not here, to define our views-of this question. As there was no estoppel in the case under any view of the transaction as exhibited in prtfof, we think the refusal to answer the point does not prejudice the defendants. But for the reasons assigned the judgment must be reversed.
Judgment reversed, and venire de novo awarded.