The conduct of the defendant in this case is without apology. Entrusted with fifty head of work oxen to feed for the plaintiff, so that they might resume the labor of breaking prairie in the spring, without any excuse whatever, he selected twenty of the most choice animals, shipped them to Chicago without the knowledge or consent of the plaintiff, and sold them for beef, and he should, by every principle of justice, be held to the heaviest verdict the law could pronounce.
By the agreement, the defendant having received the oxen in November, 1857, was to feed them until the tenth or thirtieth of April following. Between the first and tenth of January, the plaintiff paid the defendant one hundred dollars, on this account, being all that he asked at that time. When afterwards, in February, the plaintiff went after the oxen, the defendant said he had shipped twenty head to Chicago, to get his pay for feeding them. There is no evidence whatever that the plaintiff was behind in his payments a single dime, and this act of the defendant, thus depriving the plaintiff of his property, was wholly unjustifiable. It was an outrageous breach of trust, to say the least, and for which full damages should be awarded.
It is complained now, that as. the court instructed the jury that if the defendant sent off and sold for his own use, a part of the plaintiff’s cattle, that constituted a conversion of so many as he did so send off and sell, and the plaintiff is entitled to recover their value at the time of their conversion. The plaintiff profited by the increased value put on the cattle by the feeding. That the true measure of damages was their value independent of the feeding.
The court stated the general rule in trover correctly. Keaggy v. Hite, 12 Ill. R. 101.
If the defendant supposed there were any circumstances in this case constituting an exception to this general rule, he should have asked a separate' and distinct instruction, stating the exception. All the right the defendant had, was that of recoupment for the value of the keep of the oxen, and, looking at the evidence and verdict, it is quite manifest that right was fully accorded to him by the jury.
The plaintiff had the right to declare in trover for the tort or on the contract, and the defendant could defend under the contract if necessary to his defense. Ill. Cent. Railroad Co. v. Morrison, 19 Ill. R. 141.
The judgment is affirmed.
Judgment affirmed.