Danforth, J.
Whether this bill is maintainable as an interpleader is a question not now before the court. By the reference the parties have waived such objections as might have been raised to it as such, and the subsequent proceedings may [258]*258be considered as a substitute for tbe interpleader. Atkinson v. Manks, 1 Cowen, 691. Hence the only questions arising are such as are presented by the exceptions. The rule required the referees to determine the facts and present to the court for decision such questions of law as shall arise thereon. This they have done and the proforma acceptance of their report presents the correctness of their finding in matters of law.
There are several rules of law laid down by the referees, the object of which is to settle, as contemplated in the bill, the ownership of the damages to be recovered in an action now pending for their assessment between the defendant, Daniel M. Dunham as plaintiff, and the complainant in this bill as defendant. The contest over what may be the fruits of that suit, is between the defendants, the Warrior Mower Company on the one hand and George W. Duuham on the other, both claiming as assignees under Daniel M. Dunham, the plaintiff. The referees find that the assignment to George W. Dunham is valid and that there was none to the Mower Co. Whether this latter finding is correct, is immaterial; for, if the validity of the assignments were the only question involved, that to G. W. Dunham is certainly of equal validity with the alleged assignment to the Mower.Co. and being of an earlier date would ¡irevail. But the company claims under another and a different title, that of ownership in the property, a wrong to which is the-foundation of the action in which these damages are claimed. As the plaintiff in that action could transfer only his own interest in it, it is apparent that if this claim of the company is found valid it must prevail over the assignment. It therefore becomes necessary to ascertain the relative rights of D. M. Dunham and the Mower Co. in the former action.
But the referees find as matter of law that the Mower Co. is estopped to set up such title by virtue of its conduct towards Dunham and by its assertions and refusals to him in regard to the action, both before and after it was brought. This ruling so far as it relates to the claim under the assignment, is clearly correct, for the facts show a refusal to accept such a transfer and without an acceptance it could be of no effect. But under the [259]*259other claim of title there is no estoppel. The facts show no deception, no misrepresentation of facts by which the plaintiff" was led astray, or placed himself in a position different from what he otherwise would have done, no act or word inconsistent’ with the assertion of a right on the part of the company. The ■ most that the facts show, was a refusal on the part of the com- • pany to assert its claim in the way and manner proposed; no ■ surrender of the claim, no attempt to make any transfer of it to any one. If Dunham had any interest which he could enforce in that action, the company were under no legal or moral obligation to prosecute the action for his benefit; if he had no ■ such interest a refusal by the company would not aid him. Without an interest he could not sustain his suit. That action has by the court been decided in his favor and the measure of" damages given.
Ordinarily when a plaintiff sustains his action it is presumed that the whole amount of damages recovered will belong to him. In fact the injury to him or. to his property is the measure of" the damages. But while this is the general rule there are exceptions, not to the extent or measure of damages, but to the • interest the plaintiff may have in them. It is true that an action cannot be maintained unless the plaintiff has an interest in the subject matter of the suit, but he may do so when he is not interested to the full extent of the damages to be recovered. .Such are the familar cases of injury to property in which there is a general and special owner, as bailor and bailee, consignor and consignee, principal and factor. In such cases the action may not be brought in the names of the two jointly, but may in the name of either. In the action now in question the • subject matter was mowing machines and parts of mowing-machines. The damage claimed rests upon a neglect of the carrierby which the property was improperly delayed in its transit. The-facts show that the title to the property was in the Mower-Company; that it had consigned and forwarded the machines to Dunham by virtue of a contract under which Dunham was to sell them for a specified commission and account to the company for them at a specified price. Dunham was also to pay the [260]*260freight. This contract, while it did not change the title in the •.machines and pieces, gave Dunham such a special property in '«them as to enable him to maintain the action in his own name, ¡and the consignment and forwarding the property, thus setting it • apart and putting it into the hands of the carrier for his benefit, •gave him a constructive possession sufficient for that purpose ; and as the injury was a result of a single wrongful act to the whole property the damage could not be apportioned but must all be recovered in that one action, the judgment in which would be conclusive against any suit by the general owner. 2 Redfield on Railways, (3d Ed.) 171; Chitty on Pleading, (16th Ed.) 71; Little v. Fosset, 34 Maine, 545; Nesmith v. Dyeing Co. 1 Curtis, C. C. R. 130 ; Sumner v. Hamlet, 12 Pick. 76 ; Sewall v. Nichols, 34 Maine, 582; Gowen v. Cary, 1 Abb. (N. Y.) Pr. 285 ; Wade v. Hamilton, 30 Ga. 450. Hence Dunham, in ihis suit, is entitled to recover not only his own damages but such as have accrued to the Mower Company as general owners. The measure of damages as held by the court in that case can be ¡applicable upon no other theory. If then Dunham should receive the whole damage recoverable in his suit he would be entitled to retain his own share and the balance he would hold as •trustee for the Mower Company. White v. Webb, 15 Conn. 305; Little v. Fosset, supra.
■ While Dunham might assign his own interest in the judgment .■and undoubtedly his assignment to G. W. Dunham would ■transfer that interest, that which belonged to the general owner he could not assign, for to that he had no title. The first finding of the referees, so far as they hold that Dunham had such an interest in the machines and extra parts, as would enable him to maintain the action, is correct. But so far as they put it upon an acquisition of title by a sale by him and a charging over by the company, it is erroneous. The damages would belong to those who were owners at the time of the injury and a subsequent sale of the machines would transfer no claim to such damages. If it were so Dunham would be divested of his claim as well as the Mower Co. But there was no sale to Dunham. By the terms of the contract he was to account for the machines when [261]*261sold. In the sale he was acting as the agent of his principal and the contract of sale was not between Dunham as the vendor and the purchaser, but between the general owner and the purchaser. The charging over was in effect simply a charging him with the proceeds in accordance with the contract.
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Danforth, J.
Whether this bill is maintainable as an interpleader is a question not now before the court. By the reference the parties have waived such objections as might have been raised to it as such, and the subsequent proceedings may [258]*258be considered as a substitute for tbe interpleader. Atkinson v. Manks, 1 Cowen, 691. Hence the only questions arising are such as are presented by the exceptions. The rule required the referees to determine the facts and present to the court for decision such questions of law as shall arise thereon. This they have done and the proforma acceptance of their report presents the correctness of their finding in matters of law.
There are several rules of law laid down by the referees, the object of which is to settle, as contemplated in the bill, the ownership of the damages to be recovered in an action now pending for their assessment between the defendant, Daniel M. Dunham as plaintiff, and the complainant in this bill as defendant. The contest over what may be the fruits of that suit, is between the defendants, the Warrior Mower Company on the one hand and George W. Duuham on the other, both claiming as assignees under Daniel M. Dunham, the plaintiff. The referees find that the assignment to George W. Dunham is valid and that there was none to the Mower Co. Whether this latter finding is correct, is immaterial; for, if the validity of the assignments were the only question involved, that to G. W. Dunham is certainly of equal validity with the alleged assignment to the Mower.Co. and being of an earlier date would ¡irevail. But the company claims under another and a different title, that of ownership in the property, a wrong to which is the-foundation of the action in which these damages are claimed. As the plaintiff in that action could transfer only his own interest in it, it is apparent that if this claim of the company is found valid it must prevail over the assignment. It therefore becomes necessary to ascertain the relative rights of D. M. Dunham and the Mower Co. in the former action.
But the referees find as matter of law that the Mower Co. is estopped to set up such title by virtue of its conduct towards Dunham and by its assertions and refusals to him in regard to the action, both before and after it was brought. This ruling so far as it relates to the claim under the assignment, is clearly correct, for the facts show a refusal to accept such a transfer and without an acceptance it could be of no effect. But under the [259]*259other claim of title there is no estoppel. The facts show no deception, no misrepresentation of facts by which the plaintiff" was led astray, or placed himself in a position different from what he otherwise would have done, no act or word inconsistent’ with the assertion of a right on the part of the company. The ■ most that the facts show, was a refusal on the part of the com- • pany to assert its claim in the way and manner proposed; no ■ surrender of the claim, no attempt to make any transfer of it to any one. If Dunham had any interest which he could enforce in that action, the company were under no legal or moral obligation to prosecute the action for his benefit; if he had no ■ such interest a refusal by the company would not aid him. Without an interest he could not sustain his suit. That action has by the court been decided in his favor and the measure of" damages given.
Ordinarily when a plaintiff sustains his action it is presumed that the whole amount of damages recovered will belong to him. In fact the injury to him or. to his property is the measure of" the damages. But while this is the general rule there are exceptions, not to the extent or measure of damages, but to the • interest the plaintiff may have in them. It is true that an action cannot be maintained unless the plaintiff has an interest in the subject matter of the suit, but he may do so when he is not interested to the full extent of the damages to be recovered. .Such are the familar cases of injury to property in which there is a general and special owner, as bailor and bailee, consignor and consignee, principal and factor. In such cases the action may not be brought in the names of the two jointly, but may in the name of either. In the action now in question the • subject matter was mowing machines and parts of mowing-machines. The damage claimed rests upon a neglect of the carrierby which the property was improperly delayed in its transit. The-facts show that the title to the property was in the Mower-Company; that it had consigned and forwarded the machines to Dunham by virtue of a contract under which Dunham was to sell them for a specified commission and account to the company for them at a specified price. Dunham was also to pay the [260]*260freight. This contract, while it did not change the title in the •.machines and pieces, gave Dunham such a special property in '«them as to enable him to maintain the action in his own name, ¡and the consignment and forwarding the property, thus setting it • apart and putting it into the hands of the carrier for his benefit, •gave him a constructive possession sufficient for that purpose ; and as the injury was a result of a single wrongful act to the whole property the damage could not be apportioned but must all be recovered in that one action, the judgment in which would be conclusive against any suit by the general owner. 2 Redfield on Railways, (3d Ed.) 171; Chitty on Pleading, (16th Ed.) 71; Little v. Fosset, 34 Maine, 545; Nesmith v. Dyeing Co. 1 Curtis, C. C. R. 130 ; Sumner v. Hamlet, 12 Pick. 76 ; Sewall v. Nichols, 34 Maine, 582; Gowen v. Cary, 1 Abb. (N. Y.) Pr. 285 ; Wade v. Hamilton, 30 Ga. 450. Hence Dunham, in ihis suit, is entitled to recover not only his own damages but such as have accrued to the Mower Company as general owners. The measure of damages as held by the court in that case can be ¡applicable upon no other theory. If then Dunham should receive the whole damage recoverable in his suit he would be entitled to retain his own share and the balance he would hold as •trustee for the Mower Company. White v. Webb, 15 Conn. 305; Little v. Fosset, supra.
■ While Dunham might assign his own interest in the judgment .■and undoubtedly his assignment to G. W. Dunham would ■transfer that interest, that which belonged to the general owner he could not assign, for to that he had no title. The first finding of the referees, so far as they hold that Dunham had such an interest in the machines and extra parts, as would enable him to maintain the action, is correct. But so far as they put it upon an acquisition of title by a sale by him and a charging over by the company, it is erroneous. The damages would belong to those who were owners at the time of the injury and a subsequent sale of the machines would transfer no claim to such damages. If it were so Dunham would be divested of his claim as well as the Mower Co. But there was no sale to Dunham. By the terms of the contract he was to account for the machines when [261]*261sold. In the sale he was acting as the agent of his principal and the contract of sale was not between Dunham as the vendor and the purchaser, but between the general owner and the purchaser. The charging over was in effect simply a charging him with the proceeds in accordance with the contract. But even this charging over would not prevent the principal following the proceeds in the hands of the purchaser who would not be authorized after notice from the principal to pay the agent any farther than to the extent of his lien. Edmond v. Caldwell, 15 Maine, 340; Kinder v. Shaw, 2 Mass. 398, Kelley v. Munson, 7 Mass. 319 ; Thompson v. Perkins, 3 Mason, 232 ; The ship Packet, Id. 334; United States v. Villalonga, 23 Wallace, 41.
The fifth finding of the referee's so far as now appears, would give the Mower Company all the damages to be recovered, and perhaps more. It is in fact too early to make a division of the fruits of the first suit, for we have not sufficient facts. The damages have not yet been assessed and though the court have given the measure of damages in that suit, which is in accordance with that established in Weston v. Grand T. R. Co. 54 Maine, 376, yet as in that case, it must be considered as somewhat elastic. The referees speak of Dunham’s" claim as one of injury to his business. If that is all he can prove under the allegations in his writ it may be that legally he can prove no more than nominal damage. This decision rests upon the ground that by the allegations in his writ he is entitled to recover damages in accordance with the principle laid down by the court in his suit. The referees find the damages to the Mower Company alone to be the difference in the price of the machines when they should, have arrived and their value one year after, or the next season. This is not the measure established by the court and would very probably lead to a different result. If the machines arrived too-late for sale in the season of 1876, so that it was necessary to keep them over, we might well suppose they would be worth less, when they did arrive than at the beginning of the next season, especially if the keeping over should be attended with expense. Again the facts show that the value of the machines was made up by the commission and the price to be paid to the company [262]*262for them but they do not show whether the company received the price according to the contract, or whether Dunham received his commissions and other expenses for which he had a lien in full or 'in part,’ or nothing. All these facts are necessary to be known before a division of the proceeds can be made.
The refusal on the part of the company to prosecute the action, though not an estoppel to its claim to a fair proportion of the fruits of the litigation, does make it equitable that the expenses of that litigation should first be deducted and other expenses, if any, for which Dunham would have a lien and the balance divided according to their several interests.
Exceptions sustained.
Peters, C. J., Walton, Virgin and' Libbey, JJ., concurred.