Trotter v. Tousey , 131 Mich. 624 ( 1902 )

Grant, J.

(after stating the facts). 1. The first assignment of error relates to the ruling of the court in admitting testimony. No objection was made to the question, and it therefore cannot be considered in the appellate court.

2. Some time after defendant had sold the plaintiffs’ lumber, they had an interview, in which defendant testified that he informed plaintiffs that he could make arrangements to go on and complete the contract, and that he was ready to do so. His counsel then asked him what it would have cost to fill the contract at that time and deliver the lumber. The objection to its immateriality was sustained by the court. The ruling was correct. Plaintiffs had not agreed to take any other lumber than that which had been bought by them, and had been marked “Sold” to them. By this contract defendant agreed to ship this lumber to the plaintiffs. He sold it to other parties instead. Plaintiffs’ right of action was complete, and it is no defense to say that the defendant subsequently offered to deliver other lumber.

3. Defendant offered testimony to show that such lumber had depreciated in value between the dates of the contract and the institution of suit. The testimony was excluded as immaterial. The determination of this question depends upon the measure of damages applicable to the case. No fraud is alleged in the making of the contract or in its execution until this lumber had been set •apart by the defendant as the property of the plaintiffs. Both parties agree that the title had passed and was in the plaintiffs. The fraud complained of is that defendant disposed of and delivered the lumber to other parties. Plaintiffs claim the right to recover the difference between the moneys advanced and the purchase price of the lumber received. The defendant contends that, inasmuch as the title had passed, the measure of damages is the value of the lumber when so taken and appropriated by the defendant.

The declaration complains of defendant “in a plea of trespass on the case upon promises,” and at the close claims damages “arising out of such express contract for the fraud so committed by the defendant against plaintiffs.” The declaration is not in form in trover. It, however, states facts which show a conversion. Plaintiffs had two remedies open to them, viz.: To sue in trover for conversion, or to waive the tort and bring assumpsit. Tuttle v. Campbell, 74 Mich. 652 (42 N. W. 384, 16 Am. St. Rep. 652). The facts set forth in the declaration are applicable either to an action of trover or to an action for breach of contract. Defendant had committed a breach of contract in failing to ship the lumber as agreed. If the declaration had been in trover, or an action on the case for fraud, the measure of damages in each case would have been the value of the lumber at the time of its appropriation by the defendant. If it was worth more than the contract price at the time of its conversion, that worth is the measure of damages. , If it was worth less, that worth is the measure. If it was worth the same, then the purchase price becomes the measure. If the declaration is based upon the contract, for a breach thereof, which we think it is, it is difficult to see why the measure of damages is not the same. In either form of action they have lost their property. It has been appropriated by. the defendant. Their loss is not what they paid for it, but its-worth when wrongfully disposed of by the defendant. We are of the opinion that the measure of damages is the value of the lumber at the time defendant appropriated it by sale and delivery to other parties.

Other errors are assigned, but it is unnecessary to discuss them.

Judgment reversed, and new trial ordered.

Hooker, O. J., Moore and Montgomery, JJ., concurred.