#### Andrew Johnson v. John Weedman.

Error to De Witt.

1. Bailment — wrongful use of property. If a bailee for a special purpose use the property for another purpose, without leave of the owner, he is liable as for a conversion; yet this should be understood only of such an use as occasions an injury or damage; and that damage or injury, and not the value of the property, would be the measure of damages to be recovered, if the property be returned. Where no injury is sustained only nominal damages can be recpvered. (a)

2. Same — no injury. Such use of property by a bailee, as is without detriment to the bailor; does no- amount to a conversion.

3. Same. Where a horse was delivered by the plaintiff to the defendant, to be agist-ed and fed, for a valuable consideration, and the defendant, without the authority of plaintiff, rode the horse fifteen miles, and the horse died a few hours alterwards, but not in consequence of the riding : Held, that the plaintiff could not sustain an action for trover and conversion. (b)

4. New Trial — vindictive damages. Courts will not grant new trials where vindictive damages only, or merely nominal damages, are sought to be recovered, (c)

The proceedings in this cause in the court below were had before the Hou. Samuel H. Treat; but at what term, the agreed case does not show. The jury found the defendant not guilty. A motion was made for a new trial, which was overruled, and a judgment rendered for the defendant for costs. The cause was brought to this court by writ of error, and submitted upon briefs.

Wells Colton, for the plaintiff in error;

Weedman being bailee of the horse, for a special purpose, to wit, agistment, was guilty of a conversion in using him without leave. What is a conversion ? See 6 Bac. Abr. 677, 691, last paragraph ; Reynolds v. Shuter, 5 Cowen 823 ; Whelock v. Wheelwright, 5 Mass. 104; Bristol v. Burt, 7 Johns. 258.

Conversion may be temporary or permanent. Keyworth v. Hill et ux. 5 Eng. Com. Law R. 422.

Change of property is only made bv a judgment for a permanent conversion. Brown v. Sax, 7 Cowen 97.

A return of the property converted goes in mitigation of damages. 6 Bac. Abr. 680, 690, last paragraph, — in D, 708, last paragraph but one ; Reynolds v. Shuter, 5 Cowen, 323.

The above points, made to' establish the position of the plaintiff are that the taking of the horse of the plaintiff from the pasture, and putting him to defendant’s use, constitute a complete conversion, on which an action could be sustained. If the horse had been *513returned, the action would still lie, and the return would be in mitigation of damages. As he never was returned, the verdict should have been for the plaintiff, to the amount of the horse’s value, when converted ; and the instruction that the defendant was entitled to a verdict, unless it “ appears the horse died through bad usage,” was erroneous.

A demand need not be made by the plaintiff to maintain suit, even where the original possession of the defendant [*496] was lawful, if an actual conversion be proved. Refusalon demand is only evidence of conversion, and notin itself a conversion. 6 Bac. Abr. 706, fifth paragraph, letter Gf ; Tompkins v. Haile, 3 Wend. 407.

If the case shows a conversion, the vei'diet was clearly contrary to evidence, and there should be a new trial.

6 Bac. Abr. 662, states: “ It is the general rule that if the verdict be contrary to evidence, the court will grant a new trial,” citing Strange 11Ó6,1142 ; 2 Tidd’s Pract. 908; 3 Barn. & Aid. 692 ; 3 Bing. 610 ; 4 Bing. 195 ; 1 Caines 25, and note.

A. Lincoln, for the defendant in error:

1. The riding of the horse was not such an abuse of the lawful possession as amounts to a conversion; and,

2. If the riding was a conversion, the injury done by the riding, and not the value of the horse,is the measure of damages. Mur-rays. Barling, 10 Johns. 176.

In the latter case it is said : “ as if a man takes my horse to ride, and leaVes it at an inn, that is a conversion; for though I may have him by sending for him, and paying for his keeping, yet it brings a charge upon me. It is this charge that is to regulate the damages.”

3. Though the riding of the horse may be a conversion, still, as it did no injury to the horse,the damage can but be nominal; and after verdict, a new trial is never allowed to enable a plaintiff, to recover nominal damages .merely. 2 Co wen, 483, last sentence of the opinion; 3 Johns. 239; 10 Wend. 119.

(a)

Cases Citing Text. In action against bailee for negligence whereby bailor lost chattel bailed, return of chattel uninjured before suit goes in mitigation of damages, which are confined to actual loss. American Express Co. v. Brunswick 4 Bradw. 606, 610.

(b)

Where bailment, e. g. of horse, is gratuitous and for bailee’s benefit, he is bound to extraordinary care. Phillips v. Condon, 14 Ill. 84.

(c)

New trial will not be granted merely to enable party to recover vindictive or nominal damages. Comstock v. Brosseau, 65 Ill. 39, 44.

Scates, Justice,

delivered the opinion of the court: Trover for a horse; issue not guilty ; trial and verdict not guilty. The plaintiff moved for a new trial, which the court denied, and rendered a judgment for costs.

The agreed case shows the following facts ; That the plaintiff, bailed a horse to the defendant to be agisted and fed, for a valuable consideration; that while the horse was so in the defendant’s possession, and without the plaintiff’s authority, he rode the horse fifteen miles ; that the horse died within a few hours afterwards, but not in consequence of the riding. And the cause is submitted for the opinion of the court upon two questions :

First. Is the plaintiff entitled to recover upon the facts stated ? and,

*514 Secondly. Ought a new trial to have been granted ?

In answer to the first point, we say he is not.

While we admit that if a bailee for a special purpose, as he is here, viz. agistment and feeding, use the property for another purpose, without leave of the owner, he is liable as for a conversion, and, as is laid down in the books, for assuming and ex- [* 497] ercising ownership over the goods. 6 Bac. Abr. 667, 691; 5 Cowen, 323; 5 Mass. 104; 7 Johns. 258; yet it should be understood only of such an use as occasions an injury or damage, as is said in Murray v. Burling, 10 Johns. 174; 6 Modern, 212; 6 East 540; and that damage or injury, and not the value of the property, would be the measure of damages, to be recovered, if the property be returned. Here it is admitted that no damage was done, or injury sustained, unless the law deemed the use a conversion; in which case nominal damages only could be recovered. The horse died, and therefore could not be returned, but without fault of the defendant, as it was not in consequence of the riding. If the doctrine of the books is to be literally understood, that .any and every use, by the bailee, not falling strictly within the terms of the bailment, is a conversion, the mere temporary exercise of the animal for his own health and improvement, might, in like manner, be charged as a temporary conversion, subject to be made permanent, and the right of property changed into the defendant by a judgment, or if the defendant could and would return the property, the damages are mitigated by the amount of the value of the property, as is laid down in 6 Bae. Abr. 680, 690, D 708; 5 Co wen 323. So that finally the party would recover only the true damages, which, in this case, could be nothiug, as there was no evidence of actual damage. No demand and refusal was necessary in this case, as the plaintiff does not seek to recover the value of the horse, but only the supposed damage, for an illegal use of the horse. I would by no means be understood as saying that the defendant had a right, or that it was proper to use the horse, but only that, that use, in this instance, being without detriment, does not amount to a conversion. Another form, of action would be better adapted to adjust the real rights of the parties. Peradventure in an action of assumpsit for the use of the horse, the value of his services might be recovered, or in a special action on the case, on the bailment.

In answer to the second question, we answer also in the negative. Even if the plaintiff should be entitled to recover, still a new trial might have been refused, as the value of the horse is not sought by the proof; the only damages that could be recovered would be in the nature of smart money, for the wrongful use, which must be in their nature vindictive, as there is no proof of special damage or injury. And it is a rule that courts *515will not grant new trials, where vindictive damages only are sought to be recovered, or merely nominal damages. 2 Cowen 438; 3 Johns. 239; 10 Wend. 119. The judgment is affirmed with costs.

Judgment affirmed.