Matthews v. Coe

By the Court,

Geo. G. Barnard, J.

I have examined this case with care, and am satisfied that the referee was correct in his finding that the warehouse receipts for the corn in question were pledged by Losee to Coe for a loan of money at a usurious rate of interest, and that the form of a consignment to Coe, of the corn covered by the warehouse receipts, was intended as a cover for the taking of the usurious interest. But the appellant assigns two reasons why the respondent cannot recover:

1st. Because he is not a borrower, and therefore cannot avail himself of the usury between Coe and Losee.

2d. Because he consented to the sale of the corn.

The first proposition is clearly not maintainable. For before the assignment to Matthews, Losee had commenced his action against Coe for the recovery of the warehouse receipts, and claimed that they should be returned to him freed from any claim on the part of Coe for the money advanced upon the usurious agreement; and it was the warehouse receipts, thus discharged of any claim, which Losee assigned to Matthews, and for the conversion of which this suit was brought. The court, in Bullard v. Raynor, (30 N. Y. Rep. 200,) said: “ Ko rule of law is better settled than that the purchaser of property charged with a usurious lien or claim can allege the usury and defeat the claim when the purchaser sold discharged of such usurious lien.” 2d. I do not find any evidence of consent from Losee while he owned the corn, nor from Matthews to Coe while he owned it, for the sale thereof; and if there were, the referee must have found, from all the, evidence, the contrary,.to have arrived at his conclusions. (29 N. Y. Rep. 666.) The two orders on the warehousemen, which Coe claims as such consent, cannot by any possibility be so construed. On the 20th of April the form of the original action had been changed, and the plaintiff claimed damages for the unlawful conversion of the property by Coe; and when Coe applied to him to withdraw the orders previously given to the warehousemen “not to deliver the corn,” he did so, he says himself, to save Coe the necessity of indemnifying the warehousemen.

The plaintiff having elected to pursue his action in trover, he could no longer restrain Coe in the disposition of the corn.

The only question remaining is as to the amount of damages. The Court of Appeals has so repeatedly stated the rule in this State to be the highest price at which the article converted sold for, from the time of the conversion to the time of trial, that it is no longer an open question, and the referee was clearly right in the measure of damages applied by him to this case. The question of damages has long been a troublesome one, and I think it better that we should adhere to that rule, which has been finally adopted, as it has the merit of being perfectly certain, and in the great majority of cases just. The rule here adopted by the referee was approved and adopted in the case of

[New York General Term, April 4, 1870.

Wilson v. Mathews, (24 Barb. 295,) which was also for a conversion of grain, and approved and sustained by the Court of Appeals in the case of Burt v. Dutcher, (34 N. Y. Rep. 495,) which was 'for á conversion of hops.

The judgment should be affirmed, with costs.

Ingraham, Cardozo and Geo. G. Barnard, Justices.]