The objection is not well taken. If the person acted as clerk for the defendants any length of time, it is a circumstance from which the jury may infer his authority, or it may open the door for showing that the defendants, knowing his acts, received the benefit, and so ratified and were bound by them.
R. Hitchcock and Webb, contra,contended that the right was fixed when the suit was brought. They cited Cowen Tr. 633; 1 D. Chip. 248; 14 John. 128; 4 Pick. 466; 5 Bin. 457; 6 Serg. & R. 300.
WRIGHT, J. to the jury. The owner of a chattel, or any one having a special property in it, coupled with a right to possession, may follow it into the hands of any person to whom it shall come, and make him liable in this form of action, if the possessor shall have abused it, or used it as his own, or done any other act inconsistent with the owner’s right. This is called the conversion of it. It is looked upon as evidence of conversion, to refuse to deliver to-the owner on demand.
*The plaintiff’s claim in this case is founded upon property [362-in himself, and he is entitled to a verdict at your hands for whatever of his ore you find, by the evidence, has come to the hands or possession of the defendants, which they have used as their own, or refused to deliver to the plaintiff. If any has been delivered to their clerk, which has come to their use, it is the same as if delivered to them personally.
Possession of land under a contract of purchase on time for payment, is prima facie rightful in the purchaser, by the common usage and custom of the country. The right to enter is implied under such contract, to improve, and perhaps to raise the means of paying for the land. The purchase is complete in equity, and the title will be enforced, if the payment is made. At law, the land is so far regarded as passed from the vendor, as not to be subject to the lien of a judgment against the vendor. A purchaser, when so in possession, may use the property as his own, as he would if he had the title. The only remaining interest of the vendor is, to have the purchase secured, and he may protect that interest if jeoparded, by restraining the party from acts lessening the value of the freehold, till he is paid; but we think, the purchaser in possession cannot be looked upon as proceeding tortiously per se, so that all who purchased wood, coal, boards, ore, &c., of him, taken from the land, must be made liable over to the owner of the soil, for any value, much less that in» *370creased by the labor of the purchaser. If, therefore, any ore, in this case, was raised and sold to the defendants under such circumstances, the plaintiff has no. right to recover for that, and you may throw it out of view.
If, also, any part of the ore in dispute has been raised by a trespasser, or mere wrong-doer, and the plaintiff has discharged the trespasser, and received satisfaction from him, in any way, for so much, he cannot recover of others. The discharge of one discharges all; and he has no legal right to but one satisfaction for the injury.
The plaintiff asks us to give you in charge that the rule of damages is the value at the furnace, increased by the labor of raising and hauling to market, and by the rise in price down to the present time. This we decline to do in the terms asked.
The damages assessed in this action should look to making the plaintiff whole for the loss he has actually sustained, for the taking ore, or other conversion of his ore by the defendants. Whatever the actual damage is, that should be the measure of your verdict; 1 John. 65; 2 John. 280. In cases where the possession of the defendants is wrongful, and there is a wanton conversion, as by 383] ^'mixing with other property, to destroy its identity, or where the property converted has an ideal value to the owner, as family pictures, or other relics, and but little intrinsic value, exemplary damages are sometimes given to secure a return of the property. But when the chattel is of determinate value in the market, as money, or common merchantable articles, the rule of damages is the value of the article at the time of the conversion, increased by interest up to the verdict.
You may, therefore, inquire, if there is evidence of wantonness on the part of the defendants in obtaining this ore, as if they procured it to be dug, or if there are any circumstances in the case which have imparted to it a peculiar value to the plaintiff, which the conduct of the defendants has deprived him of, and if you so find, take such circumstances into your estimate of the injury, and in such case, you may, if you think the circumstances require it, give damages by way of smart money, or to induce the doing of justice.
If there be no such circumstances, and you find for the plaintiff, your verdict should not include the increased value of the ore by raising, hauling, or other labor of the defendants or others since the conversion. Such value is not the plaintiff’s loss. But you may lawfully take the value of the ore at any time between the taking and the commencement of the suit as the value, and add to that the *371interest up to this time, and find a verdict for the aggregate in damages.
Verdict for plaintiff for $96.70. Judgment for plaintiff for damages, and for defendant for costs.
No motion was'made for a new trial; if there 'bad been, the court would have granted one to the plaintiff;, because, if entitled to a verdict, as court thought he was, he had a right to much higher damages.
[Possessory rightis an estate which can be sold on execution, and buyer’s estate cannot be denied by debtor; Scott v. Douglas, 7 O. 1st pt. 227, 228.
Damages in conversion excludes increased value from labor of wrongdoer — title in such property; Railway Co. v. Hutchins, 32 O. S. 571, 585.]