, ' 54 V , ~ , vmnmnan Rmronrm. . A l
· January, after 190,000 bushels had been shipped and sold, Jones wrote 7
to Mills & Co.: " I wired you last. night, asking you if I was safe in buy-
ing on the basis of the last figure, 53;" and in the same letter notified
them that he had drawn on them for $1,550, for 1,484 sacks, the same
being a part of the wheat in dispute. In my opinion, all of the wheat
in controversy, that is to say, 4,340 sacks, was sold by Jones to Mills
& Co., and the ownership of the respective lots passed to them upon the
payment of the respective drafts. Thatbeing so, there can be no doubt,
in view of other undisputed facts, that the title to .the·wheat vested in
the plaintiffs. . Bank of Rochester v.J0nes, 4 N. Y; 497. The extent of ‘
their interest therein need not be considered in this case.
It results from these views that, as to the 3,640 sacks, certainly, de·
fendant was not justified in the delivery to Jones, and is consequently ·
responsible to plaintiffs for the conversion. So, also, I think, is defend-
ant responsible for the 390 and 310 sacks delivered to Taylor, Young
& Co., and Caesar & Co., respectively. In each instance, without
. requiring the surrender of the shipping receipts which it had issued,
and which it was shown at the trial were always treated by the com-
pany as negotiable, defendant delivered the property to. others than those
i claiming under that title. For such misdelivery it must answer to the
true owner. The Thames, 14.Wall. 107; Otty Bwnkr v. Railway G2., 44
N. Y. 141. ,
‘ It only remains to consider the question of damages. By virtue of
· section 3336 of the Civil Code, .plaintiH`s are entitled to recover the high-
est market value of the property at any time between the conversion
and the verdict, without interest, and a fair compensation for the time
and money properly expended in pursuit of the property. The most
satisfactory testimony in regard to the highest market value reached by
Walla Walla wheat since February, 1886, is that of Sinclair, who fixes
it at $1.58% per cwt. ; and that value will be allowed, less freight at the
rate of $8.70 per ton. . Kavanaugh’s testimony in regard to the highest
value is too speculative. The evidence is insuflicient to show that plain-
tiffs properlyexpended anything in pursuit of the property. The only
evidence on that point is that of Wadsworth, cashier of plaintiffs, who
was asked: "Questt0n. Have you paid out anything in-the pursuit of this
property? Answer. We paid some fees, yes, sir.; and some costs. Q.
_ To what amount? A. My recollection is, $650,-—we paid a fee; and
about $50 costs. Q. $650 feesifor what? A. Attomeys.?’ It devolves
upon the plaintiffs to show the circumstances under which the payments
were made, so that the court may determine whether the money was
' properly expendedtor not. · ·   · r A .
Counsel for plaintiffs will prepareghndings infaccordance with this _
V opinion, submit them to opposite counsel for such suggestions as they
may think proper to make, and then: to me for settlement.