No. 53—2167.

#### Frank F. Cole v. John T. Cosgrove.

This was trover, by Cosgrove against Cole, to recover damages for the wrongful conversion of a stock of boots and shoes which had been pledged by the former to the latter. The plaintiff", upon the verdict ®f the jury, had judgment for §7,842.55, *638and defendant brings error to this court. The evidence shows, beyond controversy, the commission by Cole while such pledgee of fraudulent acts respecting said goods, so inconsistent with his duties as pledgee thereof as to terminate the bailment and render him liable in this action for the loss of the goods. In such a case errors in the instructions not affecting the measure of damages become immaterial, if any such exist and as the pleadings stand the court finds none, as respects damages, of so serious a character as not to be remedied here. Upon full condderation of all the evidence, the court is of opinion that the damages shown amounted to the sum of five thousand and five hundred dollars, and that all given by the jury in excess of that amount are excessive. Judgment mod ified.

Judge below, Rollin S. Williamson.

Attorneys, for plaintiff in error, Mr. Robert Her-vet and Messrs Barnum, Rubens & Ames ;

for defendant in error, Messrs. Sleeper & Whiton and Mr. L. M. Shreve.

Opinion filed Jan. 6, 1886.

Opinion Per Curiam.