The complaint alleges that Laodicea Robinson, the plaintiff's intestate, died on the 8th day of March, 1891, possessed of certain mortgage bonds of the value of $4,000, which had been negotiated to her by one Henry F. Royce, and that after her decease and before the appointment of an administrator upon her estate, her surviving husband, Israel G. Robinson, the defendant's testator, converted said bonds to his own use and has never repaid the same.
Upon the trial the defendant conceded that his testator, by exchanging the Krom bonds for the Durley bonds on the 14th of March, 1891, and before his appointment as administrator, had been guilty of a technical conversion of the first-named bonds, but claimed that since the estate of Laodicea Robinson had accepted and retained the Durley bonds, the plaintiff was entitled to recover only a nominal sum if the value of the Durley bonds at the time of the conversion should be found to equal or exceed that of the Krom bonds; and that if it should not be so found, then only the difference between the values of the two lots of bonds, with interest. *Page 447
It was proper for the court to instruct the jury that the ordinary rule of damages in an action of this character was the value of the property at the time of the conversion, with interest, but that the value of any benefit which the estate of Mrs. Robinson had received from the property or its avails after such conversion, should be applied in reduction of the damages so fixed by the general rule. Seymour v. Ives,46 Conn. 109, 113. The complaint of the plaintiff seems to be that the court, in its charge upon the question of damages, erred in assuming that the plaintiff or his predecessor had received the Durley bonds as a reparation pro tanto for the conversion of the Krom bonds, and in not submitting it to the jury as a question of fact whether the Durley bonds had been accepted to the extent of their value in place of the converted bonds.
The record discloses no ground for such claim. The language of the finding is that "the controversy on the facts was confined to the value of the Krom and Durley bonds. The plaintiff claimed that the Krom bonds were greater in value than the Durley bonds, while the defendant claimed that the Durley bonds were equal to and in excess of the value of the Krom bonds." The facts regarding the retention by the plaintiff of the Durley bonds seem to have been undisputed. These bonds were inventoried as a part of Mrs. Robinson's estate in May, 1891, and after the appointment of the plaintiff as administrator in 1893 were delivered to him by the defendant as a part of said estate, and as such they have ever since been retained by the plaintiff. In the absence of any evidence explaining such retention of the Durley bonds, and especially after the plaintiff had full knowledge of the fact that they had been substituted for the Krom bonds, the court was justified in assuming that the plaintiff had accepted them, to the extent of their value, for the converted bonds. Neither the presentation of the claim prior to May, 1894, nor the commencement of this action in September, 1894, so long as the plaintiff retained the Durley bonds and made no offer to surrender them, constituted a refusal to accept them for what they were worth. Under the charge of the court the jury must have found that the Durley bonds were at least as valuable *Page 448 as the Krom bonds at the time of the exchange. It therefore does not appear that the estate of Mrs. Robinson has sustained any substantial injury by the acceptance of the Durley bonds.
The plaintiff suffered no substantial injury by the charge of the court that under the pleadings no verdict could be rendered against Royce. If because Royce filed his answer without requiring the complaint to be amended as ordered by the court, the pleadings are to be read, as claimed by the plaintiff, as charging Israel G. Robinson and Royce with having jointly converted the Krom bonds, a verdict for no more than nominal damages could have been rendered against Royce, upon the fact found by the jury that the estate had suffered no damage by the conversion. No evidence against either of the defendants, affecting the subject of damages, which was the only question of fact in controversy, was withdrawn from the jury by such charge.
We are unable to see how the expression by the trial judge of his opinion, that both these issues of bonds were fraudulent schemes to swindle eastern investors, could have prejudiced the plaintiff's case.
The plaintiff has no reason to complain of the ruling of the court excluding the question asked Royce, until the date of the sale inquired about should be shown. Apparently the plaintiff did not care to renew the question when it appeared that the purchase was made nearly two years prior to the date at which the value of the bonds was in question.Jacksonville, T. K. W. Ry. Co. v. Prior, 34 Fla. 272.
The question asked of the witness Crabb was properly excluded.Martin v. New York N.E. R. Co., 62 Conn. 331,343. The purpose for which it is now claimed, as showing the witness' knowledge of the premises, does not seem to have been stated in the trial court. But had it been expressly asked for that purpose, it would not have been error to exclude it, since the answer would not have tended to show the witness' knowledge of the premises.
There is no error.
In this opinion the other judges concurred.