#### Walter F. Kilpatrick, Respondent, *against*Robert J. Dean *et*al., Appellants.

(Decided April 1st, 1889).

The filing, by an assignee for benefit of creditors under the general assignment act, of his official bond, is -not a condition precedent to the vesting in him of the title to the assigned estate, as the act merely provides that the assignee shall not act in the execution of his trust until after the bond is filed.

In an action by an assignee for benefit of creditors for conversion of certain property, alleged to have belonged to the assignor, by ware-housemen with whom it had been stored by a former owner, -who had given the assignor a warehouse order therefor, the assignor was allowed to testify, without objection, that he received a transfer of the property from such former owner. *Held,*that it was not error to refuse a motion, made at a subsequent stage of the trial, to strike out this testimony as stating a mere legal conclusion.

Warehousemen, who had guaranteed the payment of advances made by third parties to the owner of goods stored in the warehouse and secured by a pledge of the goods, were compelled to pay to the lenders the amounts due them. *Held,*that the warehousemen thereupon became subrogated to the rights of the lenders, as pledgees, in respect of the property; but that, having converted the property to their own use by a sale not authorized under the conditions of the pledge, this operated as a payment of the debt to the extent of the value of the property ; and, its valué exceeding the amount of the debt, the ware-housemen were liable in damages for the market value of the property, less the amount of the debt.

In an action for such conversion, the jury were instructed that, in estimating the damages, the value of the property was to be taken as of the time of the conversion. *Held,*that this was not ground for reversal, on defendants’ contention that the rule should have been the highest market price of the property within a reasonable time after *183the conversion; as the instruction given was more favorable to defendants.

In an action against warehousemen for conversion of goods stored with them, plaintiff claimed as assignee under a delivery order on the warehousemen, signed by the former owner, which referred to advances made on the goods, specifying their amounts, and requesting delivery on payment of the advances. *Held,*that the warehousemen were not entitled to set off other independent demands against such former owner, which had been purchased by the parties making the advances, but were in no way connected with the transaction in which the advances were made; although, when the advances were made, it was provided that the goods should be held as security for any and all demands of such parties against such former owner, past, present, or future, dde or not due.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered on the verdict of a jury and an order denying a motion for a new trial.

The facts were stated by McAdam, Ch. J., in rendering the opinion, at the General Term of the City Court, referred to in the opinion of this court, as follows:

“ The plaintiff, claiming title as general assignee of Peter Haulenbeek, sues the defendants for the conversion of 184 bags of coffee of the value of <14,000. Haulenbeek acquired title to the coffee under a delivery order signed by Henry A. Morris, the general owner thereof, in these words:

‘Nov. 16, 1886.

‘ Messes. R. J. Dean & Co.:

‘ Gents-.—Please deliver to P. Haulenbeek, or order, the following lot of coffee, he paying advances thereon.

Due

Oct. 14, 25 bagsM. *& C.*2,906 lbs. Feby. IT, |550.

25 „ G. C. D. 3,233

16,25 „ A.C. H.3,105 „ 9, 850.

43 „ Pm. 7,273

19, 31 „ S. R. C. 3,739 Jan. 22, 600.

35 „ A. G. H. 4,557

12,000.

H. A. MORRIS.’

24, 813

*184The sums of $550, $850 and $600 indicate the loans that Messrs Dean & Co. made to Morris on the coffees.

The defendants were warehousemen, and Morris had stored the coffees with them and received the above advances upon the security thereof. The order to Haulenbeek was intended to transfer the property to Haulenbeek, subject to the advances so made. The advances were made in this way: The defendants issued three negotiable warehouse receipts covering the coffee in question. After the warehouse receipts had been thus issued, the defendants, at the request of Morris, negotiated three loans for him on the hypothecation of the coffee—the one with the Americian Loan and Trust Company of $550, the other with the National Shoe and Leather Bank of New York for $850, and the third with the said American Loan and Trust Company for $600.

The usual course in that behalf was followed, viz: Morris made his three notes, by which he promised to pay to the order of the banks the amounts covered by the notes; and as security therefor, and also as collateral for demands of all kinds by the banks against him, past, present, or future, due or not due, ,he pledged the coffee in question—that is, he divided up the coffee among the three notes, and he gave power to the banks to sell the coffee on non-payment, and also gave the right to the banks to demand other collaterals in case the coffee depreciated below the estimated value set forth in the notes after service of a demand of one day; and he also gave the right to the banks (the payees), in case of sale to apply the proceeds to the payment of any demands due or not due which the banks had against him, with the right of purchase in the banks, etc. Then, at the request of Morris, the defendants, by indorsement in writing, guaranteed payment of each note.

Upon the back of each note was an agreement signed by Morris in the following words :

'Authority is hereby given to R. J. Dean & Co. to deliver the within note and the guarantee indorsed thereon, together with the collateral security specified therein, to the payee (bank), and to receive the proceeds of the discount of the *185said note; and for value received the undersigned hereby agrees that if Messrs. R. J. Dean & Co. pay the within note, or it is transferred to them by said payee (bank), that said R. J. Dean & Co. shall have all the right, title, and interest of the said payee (bank) in and to the collaterals specified and referred to herein, and said R. J. Dean & Co. may hold such collaterals as security for the payment of any and all demands of said R. J. Dean & Co. against the undersigned, due or not due.

H. A. MORRIS.’ '

The three notes, representing the loan of $2,000 referred to in the complaint, were thus negotiated by the defendants, and the proceeds paid over to Morris. The three several notes in question are dated respectively October 14th, 1886, at four months; Qctober 16th, 1886, at four months; and October 19th, 1886, at three months ; so that the first did not mature until the 22nd day of January, 1887.

Before maturity of the notes Morris disappeared, whereupon the payees (the banks) called upon the defendants to take up the loans, and thereupon the defendants undertook to realize on the coffee, and after receiving an offer of 13f cents per pound, which they regarded as a fair price, they, on the 14th day of December, 1886, sold the coffee to Thurber, Why land & Co. at that price, and realized therefor $3,368.89, which they placed, to the credit of Morris. No notice of sale was given to anyone. On the following day, December 15th, the defendants paid to the banks the amount of each note respectively, and they became severally transferred to them.

It is for the sale of the coffee in this manner, without notice to Morris or Haulenbeek, and before the maturity of the notes, or either of them, that the plaintiff predicates his conversion.

It is admitted that at the date of the sale neither of the three notes had in fact matured.

At the time of the sale of the coffee the defendants, R. J. Dean & Co., claimed to hold, in addition to the three notes in question of $2,000, the following other claims against Morris, to wit:

*1861. Note of said Haulenbeek, dated September 16th, 1886, four months, payable to the order of Morris, indorsed by Morris and discounted by R. J. Dean & Co., at the request of Morris,

*2.*Note of Henry Butters, dated October 23d, 1886, two months, payable to the New York Textile Filter Co., indorsed N. Y. Textile Filter Co.,

. per Morris,

3. Note of Malcolm & Flagner, dated October 23d, 1886, three months, payable to N. Y. Textile Filter Co., indorsed Henry A. Morris,

4. Also a bill for storage and for weighing and commissions, incident to the sale of the coffee in question,

5. Also a bill for storage on other coffee,

$963 11

121 26

100 98

55 67 313 27

$1,554 29

These together foot up $3,554.29, or some $185.40 more than the amount realized on the sale of the coffee, and these respective amounts the defendants claimed the right to set off against the amount realized for the coffee, upon the theory that they were demands of theirs against Morris, for which he was liable at the time of the alleged conversion, and they claimed that by the terms of the notes, and of the agreement of Morris indorsed on the back of each note, they had a right to off-set such demands against the sum which came into their hands as the proceeds of the coffee, or against any sum which the jury might adjudge the value of the coffee to be, assuming that they should fix an amount greater than the amount so realized. The correctness of some of these items was disputed, and it was denied by the plaintiff that any lien existed in respect to any of them.

Upon the trial the court refused to hold as matter of law that the three first of these five demands were capable of being set off against the damages of the plaintiff awarded by the jury, upon the ground that the language of the notes and the agreement were not broad enough to entitle the defendants *187to have them set off, but as defendant, Dean, swore to the fact that there was a parol independent agreement made with Morris that all coffee in his warehouse at any time should be held for any charges or demands against him, whether the coffee had been taken out and exchanged for other coffee or otherwise, this question was submitted to the jury as one of fact, but upon that issue the jury found for the plaintiff, and the three off-sets were, therefore, disallowed. The other two items were disposed of as stated in the opinion.

The jury, on the trial before Mr. Justice Browse, awarded the plaintiff the value of the coffee, less the original advances of $2,000 and the interest thereon, with the proper storage charges. The verdict was for $1,999.45, and from the judgment entered thereon the defendants appeal.”

The opinion of Me Adam, Ch. J., was as follows:

“ The goods being in the possession of the defendants as warehousemen at the time, the delivery of the order by Morris to Haulenbeek was sufficient to transfer the title to him, subject to the advances previously made. This is its legal effect, both as a ‘ delivery order ’ *(Searle*v. *Keeves,*1 Espin. 598; *JProudfootv. Anderson,*7 U. C. Q. B., at p. 576), lodged with the warehousemen and assented to by them *(Bentall*v. *Burn,*8 Barn & C. 428; Story Sales, »§ 311, a, 340; Hillard Sales 130,131; Benjamin Sales, 4th Am. ed., 697 ; Parsons Contracts bottom p. 570), and as an equitable assignment *(Bailey*v. Johnson, 9 Co wen 114; *Barber*v. *Lyon,*22 Barb. '622; *Gribsonv. Lenane,*94 N. Y. 183 ; and see *Lenx*v: *Jansen,*18 How. Pr. 265), delivery orders being of that class of instruments. The defendants were promptly notified of the transfer and apparently assented to it, from which an agreement may be implied to thereafter hold the goods for Haulenbeek, so that he succeeded to the rights which Morris held at the time it was made. Evidence as to what consideration was paid for the order, or what occurred at the time it was given, does not appear, but Haulenbeek was permitted (without objection) to testify to the effect of the transaction. It was, he said, a transfer and bill of sale to him. The objection that the witness gave his conclusions, instead of facts, was not taken and cannot *188be raised now. If the objection had been taken, it might have been obviated by giving the facts instead of the witness’s understanding of them. The defendants did not require the plaintiff to prove by Haulenbeek what, if any, consideration he paid for the order, or the nature of the understanding upon which he received it, but they contented themselves by objecting to want of title in the plaintiff. They did not make the point that Haulenbeek had not received title by the order, and conequently had nothing to transfer, nor did they object to want of proof of consideration therefor, and that question cannot be raised for the first time upon appeal. A party is always bound by the mode he adopts in trying his case, and he cannot assume the existence of a fact, and afterwards on appeal complain that it was not proved *(Jencks*v. *Smith*1 N. Y. 90 ; *Chase*v. *Higgins,*1 Thomp. & C.' 299). In order to show that the order was intended to pass title, the circumstances under and purpose for which Haulenbeek received the order, and the consideration he paid for it *(Tollman*v. *Hoey,*89 N. Y. 537), were proper subjects of proof, for these, if necessary, would have negatived the possible idea that Haulenbeek was to have only a temporary or special control of the goods, in the interest of the person who gave the order, and proved that the absolute title and possession together were to go to him in his own,right as owner. But the- courts have gone so far as to hold that, even where there is no proof on the subject, it will be intended that the deliverer is beneficially interested, and not a mere agent of the drawer *(Bailey*v. *Johnson,*9 Cowen 114). It is sufficient, however, to say that proof upon this subject was not required by the defendants in the court below, for it was not called forth by any objection or request that made the purpose intelligible to the court or to the adverse counsel. Its absence cannot be objected to now (Jencks'v. *Smith,*and *Chase*v. *Higgins, supra).*The rule is well established that an objection, which might have been obviated by additional proof at the trial, if taken there, cannot be raised for the first time upon appeal *(vide*same cases; *Bevoe*v. *Brandt,*58 Barb. 493; *Newton*v. *Harris, 6 N.*Y. 345; *Binsse*v. *Wood,*37 N. Y. 526; *Thayer*v. *Marsh,*75 N. Y. 340).

*189The motion to strike out the oral evidence of Haulenbeek in respect to the nature and effect of the order came too late. The evidence was allowed to go in without objection. The defendants took the chances of its being favorable to them, and finding it unfavorable could not afterwards move to strike it out (41 N. Y. 349; 64 N. Y. 628; 82 N. Y. 340; 104 N. Y. 74 ; 27 Hun 331). The motion was therefore properly denied.

Assuming, then, that Haulenbeek acquired title by the delivery of the order, and the assent thereto of the defendants, it is clear that the plaintiff, by the transfer from Haulenbeek, in turn succeeded to his rights in the premises. The objection that the plaintiff, as assignee for the benefit of creditors, did not prove the filing of his official bond, was not specifically taken at the trial, when the proof might have been supplied, and it cannot, under the cases cited, be taken for‘the first time at General Term.

The defendants, having guaranteed the payment of the advances made by the trust company and bank, became subrogated to their lights by paying to them the sums loaned, with the accrued interest. Neither of these institutions has any other claim upon the. property pledged, and it was to the extent only of the interest actually transferred by them to the defendants that they succeded to their rights in respect to the pledged property. How far these institutions would have been protected under the terms of the pledge, if they had made further advances or incurred losses on the credit and faitli of the pledge, need not be considered, because they advanced nothing beyond the original $2,000, and incurred no expense in respect to the security given therefor. A contract of pledge is like a contract of suretyship. It bears much the same relation to the original debt. The debt is the basis of the contract; it is the consideration for the pledge, and when the debt is discharged, the right of the pledgee ceases. The plaintiff or his assignors could have redeemed the pledged goods by the payment of these advances to the institutions that made them, and upon tender of the amount, restitution would have been required.

*190To the extent stated, the defendants succeeded to the rights of the institutions which made the advances. The defendants, after paying the advances to the institutions which made them, without awaiting the maturity of the notes, or calling for additional security, or giving notice of sale, or observing any of the conditions of the pledge, inserted for the pledgor’s protection, sold the coffee, and by their unauthorized sale converted the same to their own use, to the plaintiff’s damage. Indeed, the sale which constituted the conversion took place December 14th, 1886, and it was not until the following day that the defendants paid the banks, and became subrogated to their rights in respect to the coffee.

. If the sale made had been authorized by the terms of the pledge, there would- have been no conversion, and the pledgor’s remedy would have been an action for the net proceeds, after payment of the debt and the expenses of the sale, the surplus being regarded as so much money received by the pledgees to and for the use of the pledgor. But where, as in this case, the pledgees convert the subject of the pledge to their own use by making an unauthorized sale of it, the transaction operates as a payment of the debt to the extent of the value of the property, and if the value exceeds the debt, the pledgees are liable in damages for the market value of the property converted, less the amount of the debt, the measure being the difference between the two amounts, and that is the extent of the recovery had here. No tender by the plaintiff was necessary, as the unauthorized sale was made before the notes became due, and by it the defendants disabled themselves from returning the property *(Wilson*v. *Little,*2 N. Y. 443). The law never requires a tender when it would be useless and of no avail *(.Ilaynes*v. *Am. P. L. 1. Co.,*69 N. Y. at p. 439; *Lawrence*v. *Miller,*86 N. Y. 131). Payment and restitution go together. Here there could be no redemption, because the pledgees had disabled themselves from making restitution. The sale made by the defendants, contrary to the terms of the pledge, was in law a conversion of the property by them *(JDyher*v. *Allen,*7 Hill 497; *Hardy*v. *Jaudon,*1 Robt. 261; *Odgen*v. *Lathrop,*1 Sweeney *191648 ; *Wilson*v. Little, 2 N. Y. 443 ; *Lewis*v. *Graham,*4 Abb. Pr. -106; *Wheeler*v. *Newbould,*16 N. Y. 392 ; *Stearns*v. Marsh, 4 Denio 227; *Garland*v. *James,*12 Johns. 146 ; *Nelson*v. Baton, 26 N. Y. at p. 417 ; *Millilcen*v. *Lehon,*27 N. Y. at p. 375 ; *Baker*v. *Drake,*66 N. Y. at p. 522).

The jury allowed the market value of the property at the time of the conversion, less the advances and the legitimate storage expenses. The question of reasonable time in applying the measure of damages, as requested by the defendants, is without force, as the trial judge applied a rule more favorable to them by limiting the damages to the time of the conversion. Nor was the plaintiff bound to purchase coffee of like kind to replace that wrongfully converted by the defendants, in order to fix the exact loss. True, that is one way of ascertaining damages against a broker who wrongfully sells stock of a customer, who held it not for investment but for speculation. The purchaser may require the broker to replace the stock, and if he fails to do so within a reasonable time, the customer may replace it at the broker’s expense *(Baker*v. Drake, 53 N. Y. 211). The rule is a special one, applicable to a peculiar class of cases, and the option which the injured party may adopt does not supersede the elementary -rule that in ordinary cases of conversion, like the present, the wrong-doer, is liable for the value of the property at the time of conversion. The correct rule was, therefore, applied in this case.

l£he jury allowed the defendants, from the market value, the advances originally made upon the security of the pledge, with interest, and all allowances they were entitled to claim on the facts found. The defendants were not entitled to set off (1) the Haulenbeek note of $963.11; (2) the Butters note for $121.26; or (3) the Malcolm & Flagner note for $100.98. *First,*because, the action being in tort, causes of action arising on contract, and forming no part of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, cannot be set off against the wrong complained of (Code Civ. Pro. § 501). *Second,*the provision in the original notes to the banking institutions, authorizing *192them to apply the proceeds of sale to any demands, present or future, due or nor due, by proper construction refers to demands growing out of present or future specific advances "upon the coffee, or to subsequent incidental expenditures in ' reference to it, such as charges for storage, insurance, protest fees, or the necessary expenses of any sale made pursuant to the authority conferred by the terms of the pledge. It does » not extend to or contemplate independent demands to be purchased by these institutions, .in no way connected with the transaction to which the original notes refer. The provision contained in the written authority given by Morris to the defendants, providing that in case of payment by them of the notes they should succeed to the right of the banks in respect thereto, and might hold the coffee as security for the payment of any and all demands of said R. J. Dean & Co., against the undersigned, due or not due, is in like manner to be construed as applying to the demands secured by the instrument of pledge, or growing due in consequence of the keeping of the goods, and perhaps for any fresh advance made on the credit and security thereof. It did not apply to, contemplate, or cover independent demands -purchased by them afterwards, and in no way connected with the transaction to which the notes or written authority relates. Still, the trial judge sent to the'jury the question whether there was any understanding outside of the papers for a lien on the goods, in respect to these independent demands, and the jury found against the existence of any such understanding.- To hold that the language of the original notes, or of the written authority given to R. J. Dean & Co., contemplated security for any claims or demands they might purchase against the pledgor, would be to extend the security to an extent limited only by the ability and willingness of the pledgees to purchase outstanding obligations against the pledgor, a contingency too remote to have been within the presumed contemplation of the parties. Their minds did.not meet as to any such outside financial operation. The whole contract is to be considered in determining any of its parts, and if its purpose is more clear and certain in some parts than in others, *193those which are obscure may be illustrated by the light of the others. ■ The $2,000 advanced to Morris on the coffee was divided into three notes, and each of them specified with particularity the coffee pledged for its payment. A provision for additional security was inserted, and all the details thereof provided for, together with the events which were to authorize a sale. There was no running account between the parties, no provision requiring future advances to be made or to be accepted, and the instruments iii their entirety look forward to but one transaction, with the possible incidents of growing storage charges, insurance, protest fees, and expenses of sale. This is evidently what the parties intended, and as intent is the life of a contract, it must be enforced when once ascertained. Third, the delivery order given to Haulenbeek, and presented to the defendants and assented to by them, specifically enumerates the advances made on the coffee as aggregating $2,000, which is another circumstance showing that the parties contemplated a transfer of the coffee, subject only to the payment of these advances and the charges incidental to them. The parties evidently did not, at the time the pledge was made, contemplate the purchase of independent outside obligations of the pledgor which might possibly increase the lien of the pledgees to an extent which might render redemption" of the goods impracticable, if not impossible, and yet such a contingency is justified by the construction the defendants place on the original notes and written authority executed by the pledgor. The defendants, however, evidently feared that neither the notes to the banks, nor the written authority given by Morris to R. J. Dean & Co., were sufficient, by their terms, to bear the interpretation they sought to have placed upon them, in respect to covering the three notes subsequently discounted by them, for they undertook to supply the necessary authority by proof aliunde, but the jury found against them as to the existence of any such authority. The defendants were interested witnesses, and the jury were not bound to accept their theory of the facts in regard to the oral understanding they claim to have had with the pledgor *(Kavanagh*v. *194*Wilson,*70 N. Y. 177; S. P., 109 N. Y. 883). The jury, under proper instructions from the court, found against the defendants as to the existence of any special arrangement for a lien outside of the writings, and they consequently disallowed the three notes subsequently discounted by the defendants, and not held by them when the pledge and advances were made.

.The item of $313.27 was properly rejected by the court, as that charge had been previously paid by one Fisher, who, on removing certain goods from the defendants, paid the bill, upon some understanding that if it should be got back from Morris, it was to be returned to Fisher. If the payment was made because Fisher was bound to make it, it discharged the liability forever. If Fisher was under no obligation to discharge the debt, the payment was voluntarily made and cannot be recovered back by him or by any one on bis behalf *{First Nat. Bank*v. *Supervisors,*106 N. Y. 488.) The item of $55.67 for additional storage, etc., was allowed to the defendants, deducting, however, $15.19 included therein for weighing and $18.40 for selling the bags. These two charges were not authorized by anything that appears in the case, which seems to have been well tried.

The verdict is supported by the evidence, and the exceptions are without merit. It follows that the judgment must be affirmed, with costs.”

From the judgment of the General Term of the City Court, entered upon its decision in accordance with the foregoing opinion, defendants appealed to this court.

*Charles Blandy,*for appellant.

*William F. McRae,*for respondent.

Larremore, Ch. J.

After a careful consideration of the argument of the learned counsel for appellants, including both his original brief and the supplemental brief filed on the appeal to this court, I have -reached the conclusion that the judgment should be-affirmed. The opinion of McAdam, Ch. J., at the *195General Term of the City Court, is so full and satisfactory, that it is unnecessary for us to discuss the main question of the conversion and many other points involved. The following suggestions are to be taken in connection with and as supplementary to said opinion, in the reasoning of which we concur.

*First.*It was argued most strenuously that, as plaintiff is assignee of an insolvent estate under the general assignment act, and as it did not appear affirmatively in plaintiff’s case that he had filed an official bond, therefore no cause of action had been established and the complaint should have been dismissed. This contention involves the erroneous assumption that the execution of a bond is a condition precedent to the vesting of the title to the assigned estate. But, as matter of fact, the instrument itself conveys the assignor’s property to the assignee, and the law as to giving of security is simply that the assignee shall not act in the execution of his trust until after the bond is filed *(Brennan*v. *Wilson,*71 N. Y. 502). Plaintiff’s title to the claim here in suit is therefore indisputable, and the only question that defendants could have raised would have been that of his legal capacity to sue. This point was not taken in the pleadings, and the Code is explicit that, unless taken by demurrer or answer, such an objection shall be deemed to have been waived (Code Civ. Pro., §§ 484, 498, 499.)

*Second.*The learned counsel further claims that the complaint should have been dismissed, because there was not sufficient evidence, outside of the. statement of a conclusion of law by plaintiff’s witness, Haulenbeek, to establish an assignment of the coffee from Morris to the plaintiff’s assignor. The testimony in question, in which Haulenbeek gives not strictly facts, was admitted without objection. It was not error for the trial judge to refuse to strike it out upon motion made at a subsequent stage of the case. Such a motion is always discretionary, and, moreover, it is quite probable that the justice.who presided was influenced in his decision not to strike the evidence out, by an opinion, very readily to be formed from the record, that the counsel’s opposition to this evidence was an áfter-thought, and that, when it was allowed to be *196given, said counsel had no intention of disputing the existence and validity of the alleged assignment. The statements in question, and the delivery of the warehouse order, were quite sufficient to make out a *prima facie*assignment. The legal effect of testimony of this character is very much the same as that of stipulations in open court as to evideo ce. Every practitioner is familiar with the custom of entering a memorandum in the minutes that certain facts, or certainc onclusions of law, shall for the purposes of the trial be considered established. No one would question the binding force of such astipulation, or would claim that the matters so stipulated to be true were not adequately authenticated to support the verdict which follows. In the case at bar the witness testified that he received an assignment of certain coffee. This is undoubtedly a legal conclusion, and would have been incompetent. But, as it came into the case without the objection of the learned counsel for defendants, it has the same force as if both counsel had stipulated that it should be taken for granted that Morris had assigned the coffee to Haulenbeek. Under this view it would follow that the assignment was properly made out, even if the delivery of the warehouse order did not *ipso facto*operate as a transfer; and that the' motion to dismiss the complaint was properly denied.

*Third.*On the question of the measure of damages, I am at a loss to comprehend just what the practical contention of appellants’ counsel is. The group of cases culminating in *Wright*v. *Bank of the Metropolis*(110 N. Y. 237), all consider the measure of damages upon conversion of negotiable commercial securities, such as railroad stocks. Practices which have recently sprung up assimilate traffic in grain, oil, coffee, and some other commodities very closely to speculation in intangible securities. But it is not essential to determine here whether the rule laid down in *Wright*v. *Bank of the Metropolis*must be adopted in cases of speculative holdings of commodities, or whether the rule to be adhered to in all cases is still the one administered on the trial, to wit: that the measure of damages is the value of the property at the time of its conversion. Even if, as the learned counsel for *197appellants, claims, the rule of *Wright*v. *Bank*is the proper one, the trial judge in his charge advanced a proposition of law which was more favorable to the defendants. Chief Justice McAdam says this in his opinion, and we are simply amplifying his statement on the subject. The principle laid down in *Wright*v. *Bank*is, that in cases of the conversion of securities, the measure of damages shall be the value of the property within a reasonable time after such conversion. All of Judge Peckham’s reasoning was directed to the abrogation of the former rule that in such cases the plaintiff could recover the highest value of the stock down to the day of the trial. If the law established by the cited case had been announced to the jury in the case at bar, they might have been enabled to give plaintiff greater damages. Plaintiff would still have recovered the value on the day of the conversion, if that was the highest market price reached within a reasonable time, but would have been entitled to a higher, rate, if coffee sold for more money during such period. It must be apparent that, from the defendants’ standpoint, the most advantageous possible theory of damages was embodied in the judge’s charge, and defendants’ counsel is, in effect, arguing that the judgment must be reversed because the court erred in defendants’ favor.

*Fourth.*It is unnecessary to say anything here about the disposition on the trial of the Hauleubeek note of $963.11, the Butters note for $121.26, and the Malcolm & Flagner note for $100.98; further than that we think, for the reasons given in Chief Justice McAdam’s opinion, the trial court properly refused to say, as matter of law, that they were valid counterclaims, and properly submitted the question as to whether or not they were to be allowed as counterclaims to the jury.

The judgment appealed from should be affirmed, with costs.

J. F. Daly and Yak Hoeseh, JJ., concurred.

Judgment affirmed, with costs.