Gravel v. Clough , 81 Iowa 272 ( 1890 )

GraNG-eb, J.

l. conversion moí'teageee:b5: damages. I. Upon the issues of fact presented as to an agreement to furnish corn and hogs, and a failure so to do, and to cancel the mortgages Exhibits B and 0 with the surrender of ,note for twelve hundred dollars, the district court found with the defendant, and we think rightly ; for an examination of the testimony leaves little room for doubt as to such facts, and we will not produce or discuss the evidence leading to the conclusion.

The debatable question, if any in the case, is the measure of damages. The district court held the sales wrongful, and adopted, as the rule of damage, the value' ■of the ■ property at the time of the sale. Appellant urges that the measure of damage is the highest market value between the time of the conversion and suit brought, and the claim is not without strong support on authority, if we say with appellant that the rule applicable to sales of personal property, where the price is paid, and there is a failure to deliver, is applicable to this case. The rule of damage in cases of sales of property, and a failure to deliver, is'differently applied in the United States. We might be disposed to consider the importance and correctness of the different rules but for the fact that this court has held to a rule in a case, which, on principle, we think, should govern in this. In Brown v. Allen, 35 Iowa, 306, the question arose as to the measure of damage for wrongfully entering a warehouse and removing corn. It is true, the claim there was not like appellant’s claim here, but it involved the right of plaintiff to obtain more than the market value at the time of the conversion. The plaintiff in that case offered to show, as affecting his damage, that he had an outstanding contract for the corn in excess of the market value, which offer was refused, and this court held to the rule of the market value at the time of conversion. That is certainly a strong case, in its facts, for an extension of the rule, but this court said : “The market value is the measure of damage.” There is certainly no reason for holding to such a rule in that case, and. a different one in this. The taking of the property into possession in this case was not wrongful. The wrongful act consisted in selling before the maturity of the note^. At least, the district court held such selling'wrongful, and as appellee does not, in argument on appeal, question the correctness of the holding, but indicates a willingness that the cause should be disposed of on that theory, we treat it as a fact, and consider the case accordingly. Adopting, as applicable to the facts of this case, the rule in that, the market value of the property at the time of sale is a correct one, and the judgment to that extent must be approved.

II. The district court taxed the costs to plaintiff. Defendant, by way of counterclaim in the action, sought judgment on its notes for the unpaid balance, and obtained it. The judgment, however, is for less than appeared to be due thereon after applying the proceeds of the sale by some five hundred and sixty-eight dollars and forty-seven cents, and in legal contemplation such, reduction is equivalent to a recovery of that amount, and it does not appear from the record that plaintiff could secure such right, except by suit, astherightis clearly put in issue by defendant. Itis true that part of the controversy involving cost, is upon issues determined favorable to the defendant. There should be an apportionment of the costs in the district court, and, as the record before us is not such as to enable us to properly determine the amount, it will be left to the discretion of that court. ' The costs of this appeal will be paid by the plaintiff. With the exception as,to costs, the judgment of the district court is AFFIRMED.