dissenting, says;
W'e do not differ with the majority of the court on several of the assignments of error in this case. Our objections are based upon what wo conceive to be a just application of established rules of 1'aw. ■ .
The testimony tends to show bad faith, and, upon the whole cáse, the finding and judgment may not be unjust.
It may be considered settled, that he who sues in trover can not have exemplary damages or smart money, as in forcible trespass. The measure of damages is the value of the property at the time and place of conversion, and interest on such value, from that date until the judgment. See French v. Blunt, 7 Carr and Payne, 478; Kennedy v. Strong, 14 Johnson. 128; Hallet v. Novion, ib., 273; Dillenback v. Jerome, 7 Cow., 294; Kennedy v. Whitewell, 4 Pick., 466; Greenfield Bank v. Leorett, 17 Pick., 1, and 14 Pick., 356; Barry v. Burnett, 7 Met., 354, and 13 ib., 267; Hayden v. Bartlett, 35 Me., 203; White v. Webb, 15 Conn., 302; Carter v. Freeland, 17 Mo., 382; Helderbrand v. Brewer, 6 Texas, 45.
:In cases where defendants have wrongfully bold possession of property, and there was an increase in value after taking, and before the demand, suit or' actual conversion, it has been correctly ruled that the plaintiff was entitled to the highest market value during such time; but when the property was actually converted and passed beyond the possible reach of the plaintiff', then, in trover, its value and the interest is the fixed ■measure of damages.
The majority of the court ulo not differ with us as to the rule of law', hut in its application in this case.
This plaintiff proved by witness Staples, that, in January, 1862, he, the plaintiff, hauled twelve bales of cotton, weighing about 500 pounds'each, to Eldorado landing, in Union county, marked with plaintiff’s initials, and they remained there until the spring of 1863, when the plaintiff had them hauled back three miles to a house, where they remained until 1865, at which time the defendant claimed the cotton and had it re-hauled to the landing, and soon thereafter, in February or Niareh, 1865, and before the surrender, it was taken off by a boat.
After the sui’render, plaintiff called upon witness about the cotton, and witness called upon the defendant, who said he and Newton had bought the cotton, but there was a mistake and he would make it all right with the plaintiff’. Witness did not know* the value of cotton at the 'time it was taken and shipped; but he had heard of some selling at seven cents per pound, some at $20 and some at $37 per bale, in gold.
Newton testified that, after the surrender, the plaintiff called upon him, and they went to the defendant, who told plaintiff' he had got his twelve bales of cotton and he would pay him for it — w'ould make it all right. *
Plaintiff* then introduced B. F. Robinson, who was allowed to testify, over the defendant’s objections, that between the first and tenth of June, 1865, cotton, at Camden, w'as worth 37J cents per pound, in greenbacks; that he did not know what cotton was worth in February or March of that year.
Hal. Sims was then introduced and allowed to testify, also against the objections of the defendant, that in June, 1865, cotton wras worth twenty-five cents in gold ; that- he sold, some in that month for 48 cents. The plaintiff then closed his evidence, and the defendant moved the court to exclude the evidence of Robinson and Sims from the jury. The court overruled the motion and the defendant excented.
From the -inception to the close of the testimony in this case, there is not one particle of direct evidence as to the value of the cotton, either at the time or place of conversion, except Staples’ testimony that he heard of some being sold for gold, which the majority of this court say “ affords no criterion for ascertaining the value of the cotton, without proof of the relative value of gold and legal tender notes, and no such prool was made.” It may be said Eldorado landing, where the cotton was taken, and Camden, in which the value was proved, arc both in Arkansas, and not one hundred miles apart; yet they are not one — not the same place — and the proof of value at one point raises no presumption of an equal value at other-points ; nor is it the province of a jury, without evidence, to infer such value.
, It devolves. on him who first asserts the fact in court, tc bring evidence of the value of goods where taken. If he can not show their value on the exact ground where seized and converted, he can. show their value at some point more or less remote, and then show the relative situation of the two places, the cost of transportation, insurance, etc., and thus bring facts home to the jury, from which they can find the value at the place of conversion.
This conversion was in February or March; the value was proved iji June following. The conversion was before the close of the war — the value proved afterwards. To urge that the jury, without any proof as. to the fluctuations in trade, the means of presenting the cotton, the cost of storage, etc., could, from their own knowledge, infer or1 find the true value, is assuming what is not supported by authority.
"Whenever a plaintiff goes beyond the pale of the law, and selects his market, and chooses his own time’in which to prove value, and then fails to show by testimony facts demonstrating’ that such value did exist at the conversion, he fails in his case, and we can see no sufficient grounds to hold that this case does not come within the rule. If the plaintiff could pass over vital changes in commercial relations over three months’ time, and from one county to another, the same legal indulgence would allow him to go from one State to another, or from one month oryear to another; hence we are of opinion the court below did commit error in refusing to exclude the evidence of Robinson and Sims, when the plaintiff had closed his evidence, and introduced no proof as to the relative value of cotton in March and June, or at Eldorado landing and Camden.
We think the jury legally could not have found their verdict upon the evidence before them, and that that fact is apparent from their verdict. Had they found according to Robinson and Sims’ testimony, their verdict would have been largely over §2,000 ; and, as stated by the majority- of this court, they could not have found upon ¡Staples’ testimony, because he only spoke of hearsay relative worth of cotton and gold. This was all the evidence of value, and the.jury found $1,3,83^0-. Their verdict then must have rested upon their’ own personal opinions, arguments or concessions of counsel, or other -facts and circumstances not in evidence. So their verdict shows they did not find according to the evidence.
The jury are not to determine issues in court by their own opinions or knowledge of commerce and the value of merchandise. If such were the rule of law, all that could be required would be to prove the taking and give a description of the property, and from that the jury would make up a verdict. But the courts universally hold that, in such case, nothing more than nominal damages' could be given. A plaintiff must prove value, and the jury must find according to the evidence. With no proof to show its relevancy, we think it was'not competent for the court to submit to the jury the value proved at Camden so long subsequent to the conversion.
These conclusions have caused us to dissent from the majority of the court upon the application o'f this evidence.