The defendant, on December 6, 1916, contracted with the Central Illinois Light Company for the purchase of arc light lamps, then in use in Peoria, Illinois. By written agreement, he was obligated to purchase and the light company to sell the lamps. At the time of making the agreement, he paid $200 on the purchase price, and the balance was to be paid when the seller had “loaded the lamps, and before shipment.”
On March 27 and 30, 1917, the light company telegraphed the defendant requesting shipping instructions. In reply, he directed that company to forward the lamps by a specified carrier “for delivery in Boston over the Boston & Albany Railroad, ' sight draft attached to bill of lading.’ ”
The lamps were delivered on April 23,1917, with the defendant’s approval for transportation to Boston, the initial carrier being the Toledo, Peoria and Western Railway Company; and the light company obtained from that railway “a negotiable or order bill of lading in the usual form, approved by the Interstate Commerce Commission.” In this bill of lading, the light company was named as shipper and the goods were consigned to its order at Boston *205with instructions to notify the defendant. It specified that the goods were to be routed over the Boston and Albany Railroad of which the plaintiff, New York Central Railroad Company, was lessee. The following provisions were contained therein:
“It is mutually agreed, as to each carrier of all or any of said property (described in the bill) over all or any portion of said route to destination, and as to each party at any time interested in all or any of said property that every service to be performed hereunder shall be subject to all the conditions herein contained and which are agreed to, by the shipper and accepted for himself and his assigns.
“The surrender of this Original Order Bill of Lading shall be required before delivery of the property.”
The light company drew at sight on the defendant for $2,102, the balance of the purchase price, and sent the draft with the bill of lading attached thereto to the Brookline Trust Company, Brookline, Massachusetts, for collection. That company on April 27, 1917, notified the defendant that it held the draft with bill of lading attached. Although he received notice, the defendant did not pay the draft nor take up the bill of lading.
It was customary to make out way-bills to accompany freight in transit from one railroad to another, and in cases where an order bill of lading was issued by the initial carrier for that carrier to make a notation on the way-bill to show that there was such bill of lading outstanding, so that in the usual course of business this information was transmitted by successive way-bills to the final or delivering carrier, in order that its employees could require surrender of the bill of lading before delivering the merchandise. In this instance, however, by reason of the failure of some railroad employee between Peoria and Boston — at what point did not appear — this notation was omitted; and in consequence of this omission, the employees of the plaintiff had no knowledge or notice that there was an outstanding order bill of lading.
The defendant on June 14, 1917, paid the freight charges on the shipment and on June 21, 1917, the demurrage charges thereon, and on or about June 20, 1917, took the goods from the railroad. The delivery clerks did not request the surrender of the bill of lading, and the defendant received the merchandise without having taken up the draft and without having in his possession *206or offering to surrender the bill of lading. There was no evidence justifying a finding that the defendant disclosed to the plaintiff the fact that there was an order bill of lading outstanding. The defendant has never paid to any one the purchase price of the lamps nor the draft drawn on him therefor.
Thereafter, the light company made a claim against the plaintiff because of the delivery of the lamps without requiring the surrender of the bill of lading, and the plaintiff paid that company $2,102 in settlement of its claims; whereupon, on May 13, 1918, it assigned all its interest in said lamps and all claims or causes of action against the defendant for the balance of the purchase price or otherwise.
The plaintiff sued for conversion of the lamps, the action being brought on October 19, 1917. After the assignment, it brought a second action in contract on August 16, 1918. While the action first brought is described in the writ as of contract or tort, the case was submitted to the jury upon a count for conversion, the only other count having been waived.
The actions were tried together and resulted in each case in a verdict for the plaintiff for $2,102, the amount of the draft, which was also the amount claimed by the plaintiff to be the balance of the purchase price of the goods.
The exception first considered is to the refusal of the judge to compel the plaintiff to elect upon which action it relied. A request was made for such an election after the plaintiff’s opening and again at the close of the evidence. In this connection we consider the exception to the refusal to instruct the jury, that if it found a verdict for the plaintiff in one case it must render a verdict for the defendant in the other. It is assumed that this question is not within the authority of Corbett v. Boston & Maine Railroad, 219 Mass. 351, 357, as it is not procedural. The objection is not based on the contention that the plaintiff, by bringing its action in trover, has elected to have relief apart from the contract obligation to pay for the merchandise and hence cannot prevail in its action in contract. Indeed that defence to the second action would have been without avail. The alleged conversion was based on the wrongful interference with the plaintiff’s possessory right. The claim in contract was upon an agreement between the defendant and the plaintiff’s assignor, and the plaintiff had *207no right in contract until some months after the action in tort had been commenced. The bringing of the first action was not inconsistent with the right to prosecute an action on the contract originally vested in another person and founded on a distinct and independent right. The possible differences in the rules as to damages, and the forms of executions, do not necessarily render the causes of action inconsistent. For the same reasons, the plaintiff was not obliged to elect. As these actions were not inconsistent, the judge properly refused to instruct the jury that there could be a verdict for the plaintiff in one case only. The jury were instructed that the plaintiff, while it might recover judgment in both actions, could have but one satisfaction, and the parties stipulated to that effect. See Saxon v. New York, New Haven & Hartford Railroad, 214 Mass. 383, 398; D’Almeida v. Boston & Maine Railroad, 224 Mass. 452, 455.
In the action for conversion the defendant excepted to the refusal of the court to give five requests for rulings. The first and second of these were rightly refused. This action was not based on the assignment made after its institution, and it was not submitted to the jury on any issue involving it.
The remaining requests so made related to the defendant’s contention that the action could not be maintained because the plaintiff voluntarily relinquished its possession to the defendant, and because the plaintiff received from the defendant payment of the charges accruing to it for freight and demurrage. The latter position apparently is founded on the assumption that the plaintiff’s only right to possession was in order to secure payment of its own claim for demurrage, its own charge for freight and those of the initial and intervening carriers; but the right of possession was not so limited. Under the controlling terms of the bill of lading, the plaintiff had the right to the possession of the merchandise until the bill of lading had been surrendered properly. This right still existed, notwithstanding the plaintiff did not know of it. There was no inconsistency in the plaintiff’s receipt of the amount due for freight and demurrage, and authority still to hold or assert any other and distinct possessory right. The plaintiff’s possession as bailee or as agent was sufficient to support an action of trover against one whose taking was wrongful.
A verdict in the action for conversion was justified if, as could *208have been found, the defendant knew that he was not entitled to the possession, that the plaintiff could not deliver the merchandise to him without a breach of its obligation to the light company, that he took possession of it knowing that the delivery to him was unauthorized, and that it would not have been made except for an innocent mistake of fact on the part of the plaintiff. In these circumstances the defendant’s possession of the goods was in reality unauthorized and wrongful, and no demand was necessary before bringing the action or before the disposal of the property by the defendant. Kingman v. Pierce, 17 Mass. 247. Allen v. Williams, 12 Pick. 297. Stanley v. Gaylord, 1 Cush. 536. Chapman v. Cole, 12 Gray, 141. First National Bank of Cairo v. Crocker, 111 Mass. 163. Spooner v. Manchester, 133 Mass. 270. Cheshire Railroad v. Foster, 51 N. H. 490. Even if the defendant believed that his receipt of the goods was justified because of the plaintiff’s surrender of its actual possession, that belief was no defence. Stanley v. Gaylord, supra. Gilmore v. Newton, 9 Allen, 171. Hills v. Snell, 104 Mass. 173. Cheshire Railroad v. Foster, supra.
Having the right to immediate possession, the plaintiff can maintain an action of trover for the value of the goods although it was not the general owner of the property. Aldrich v. Hodges, 164 Mass. 570. Bacon v. George, 206 Mass. 566, 570. Downey v. Bay State Street Railway, 225 Mass. 281. Beacon Motor Car Co. v. Shadman, 226 Mass. 570. The exceptions raise no question as to the measure of damages.
In the action of contract, the defendant made six requests for rulings. Those numbered one and three were waived. The sixth is that upon “all the evidence the jury must find a verdict for the defendant.” The only argument based on this exception is that the ruling should have been given because the plaintiff failed to elect as to the remedy pursued. This question already has been considered and decided adversely to the defendant. For the reasons hereinbefore given, it is clear that the defendant was not entitled to such a ruling upon any question involving the sufficiency of all the evidence in the action upon contract. The bill of exceptions does not purport to contain all the material evidence, and for that reason no error is shown in any event. Sexton v. Boston Elevated Railway, 214 Mass. 432, 435. Altavilla v. Old *209Colony Street Railway, 222 Mass. 322. Requests numbered four and 'five contain a general statement of the law as to the right to recoup, and claims of that right by reason of the liability of the defendant to a third person for breach of contract because of delayed delivery of the goods and for expenses incurred in dismantling the merchandise. So far as appears, there was no evidence admitted bearing upon recoupment which entitled the defendant to go to the jury on that issue, and the rulings relating thereto were immaterial. Although the defendant testified that the lamps were broken when received, this alone, in the circumstances disclosed, did not require an abstract instruction as to the right to recoup. The bill of exceptions does not set forth all the material evidence. It did not appear what the nature of the breakage was or whether it was of such a character that it diminished the value of the lamps for the purpose for which they were adapted to be used. Posell v. Herscovitz, 237 Mass. 513. Lindsay v. Leighton, 150 Mass. 285. Burke v. Hodge, 211 Mass. 156. The second request relating to loss sustained by reason of the liability of the defendant for breach of a contract with a third party is considered in connection with the defendant’s exception to the exclusion of evidence of such contract.
The exceptions taken to the judge’s charge, not having been argued, are treated as waived. The remaining exceptions relate to the admission and exclusion of evidence.
The defendant offered in evidence telegrams sent by him to the light company after he had received the lamps and prior to the institution of these suits, wherein he advised that company of a claim for damages by a third person against him for failure to perform a contract of resale made subsequently to his contract with the light company. . He also offered to show that he settled a suit brought against him on such contract.
The rule of damages for breach of contract ordinarily is the difference in value in the property contracted to be sold in the condition in which it was required to be under the terms of the contract and its actual value. There is nothing in this case to warrant the application of a different rule. Damages accruing under a contract of resale as such cannot be charged against the plaintiff. They did not grow out of the contract itself nor were they such as must have been in contemplation of the parties. *210Fox v. Harding, 7 Cush. 516. Curtis v. Boston Ice Co. 237 Mass. 343. As the evidence was properly excluded the request for instructions relating to the same subject was rightly refused.
The defendant testified that he sold the material in the lamps. He was then asked in his own behalf, “What did you have to do before you sold the material, or what did you do?” No offer of proof was made, and it does not appear that the subject referred to in the question was relevant to any issue in either suit. The question was excluded subject to his exception. Error must be shown in order to sustain an exception, and none here appears. Posell v. Herscovitz, supra.
The judge admitted the testimony of one Feinberg that he had been in the business of selling new and second hand metals for twenty years; that he dealt in second hand arc lamps of the kind sold by the light company to the defendant, that they were well known lamps of standard form, and that he was familiar with their construction and value. There was no evidence that he knew the date when these particular lamps were made, or that he had ever seen them. He was permitted to testify, subject to the defendant’s exception, as to their metal contents, that the copper and brass of which they largely consisted were scarce between the date of the contract and the time of the actual receipt of the property by the defendant, and that the price of metals during that time had an upward tendency. The witness further testified as to the fair market value of the lamps as junk. It is not contended that the facts involved in the question were not competent. The argument in support of this exception is that the witness had not seen the particular lamps and did not know when they-were made. It does appear, however, from the bill of exceptions, which does not purport to contain all the evidence, that the lamps described in the evidence were, or might have been found to be, of the kind sold by the light company to the defendant and that they were of standard form. In these circumstances in the discretion of the judge, the witness was properly permitted to give an opinion as to the amount of copper and brass contained therein, and as to the price thereof. In his testimony, the witness assumed that the component parts of the lamps were as stated by the defendant. There was no error in the' admission of the testimony.
*211Inasmuch as the exceptions disclose no error, they must be overruled.
So ordered.