Field, J.
Cabot converted to his use the hull when he purchased it in Boston, and took possession of and used it as his own. The changes in the hull, whereby its value had been increased, which had been made by Murphy after he purchased the schooner then lying on Coffin’s Beach, were not made at the request of the plaintiff, and if the plaintiff had retaken or replevied the schooner from Murphy in Boston, he would have received her in the condition she was then in.
The market value of the property at the time and place of conversion, with interest from that time, is admitted to be the general rule for the measure of damages, but the damages are diminished when the property is in whole or in part delivered to the owner, or when the defendant has a lien upon it, or when the plaintiff has only a special or partial interest in it, and is not responsible over to another person for any of the damages recovered. These cases fall within neither of these exceptions.
The conversion by Murphy and those acting under him was when he purchased the schooner, and took possession of her as his own. This is a distinct conversion from the conversion of the hull by Cabot. The damages for this conversion by Murphy and his co-defendant cannot be enhanced by the increased value of the schooner from the repairs and changes in her condition they made after they had converted her to their own use, but must be confined to the value of the schooner as she lay on Coffin’s Beach. If damages are recovered for this conversion for the full value of the schooner as she lay on Coffin’s Beach, and are paid, the title to the schooner vests in [440] Murphy and his co-defendant as of the time when they took possession of her, and the plaintiff’s right of action against Cabot is necessarily discharged. If damages are recovered against Cabot for the full value of the hull, and he pays them, it seems that these damages must be regarded as a'satisfaction pro tanto of the judgment against Power and Murphy. Cabot may have his action against his vendors for the value of the hull, on the ground of an implied warranty of title, if there were such a warranty, but that is immaterial to the rights of action of the plaintiff.
Dresser Manuf. Co. v. Waterston, 3 Met. 9, was the case of a conditional sale, and Green v. Farmer, 4 Burr. 2214, is the only case cited for the rule of damages adopted; but in Green v. Farmer the question argued was whether “ the defendants have a lien upon these goods for more than the price of dyeing,” and it was decided that they had no lien for a general balance of account, but only for dyeing the particular goods. In conditional sales the vendee has ordinarily a right to sell his interest, whatever it may be. Day v. Bassett, 102 Mass. 445. Currier v. Knapp, 117 Mass. 324. Chase v. Ingalls, 122 Mass. 381. Newhall v. Kingsbury, 131 Mass. 445.
But if there be an exception to the general rule of damages, when an action in the nature of trover is brought against a purchaser from a conditional vendee, who has improved the property while in his possession, it is not necessarily applicable to these cases, because here the original taking was tortious. In replevin, any improvements of the property attach to and go with the property replevied. In trover, when the property has been improved in value after the conversion, the form of the action does not render it necessary that damages should be given for the improved value; and the general principle is that the damages, shall compensate the plaintiff for what he has lost. The rule of confining the damages to the time of the conversion, with interest from that time, has been adopted in this Commonwealth as the most satisfactory; and many difficulties are avoided which arise under any other rule, when the value of the property is fluctuating, or when the property has been improved in value or changed in form by the wrongful taker after the conversion and before the trial. In the event of successive conversions, if the value [441] of the property at the time of the first conversion were always taken as the test of damages, then it might often happen that a defendant who had subsequently converted the property would be held to pay more than the property was worth when he converted it. The damages caused by one wrong would be measured by those caused by another. Kennedy v. Whitwell, 4 Pick. 466. Stone v. Codman, 15 Pick. 297. Greenfield Bank v. Leavitt, 17 Pick. 1. Murphy and his co-defendant had no right to convey to Cabot, as against the plaintiff, the improvements they had made upon the hull, and as the title continued in the plaintiff, we know of no cases which decide that, under the circumstances disclosed in these exceptions, Cabot is not liable in damages for the market value of the hull at the time and place of its conversion by him. The question does not arise whether the damages recoverable against Cabot can in any event exceed the whole amount of damages recoverable against Power and Murphy. The ruling of the court upon the measure of damages in the action against Cabot was correct.
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Field, J.
Cabot converted to his use the hull when he purchased it in Boston, and took possession of and used it as his own. The changes in the hull, whereby its value had been increased, which had been made by Murphy after he purchased the schooner then lying on Coffin’s Beach, were not made at the request of the plaintiff, and if the plaintiff had retaken or replevied the schooner from Murphy in Boston, he would have received her in the condition she was then in.
The market value of the property at the time and place of conversion, with interest from that time, is admitted to be the general rule for the measure of damages, but the damages are diminished when the property is in whole or in part delivered to the owner, or when the defendant has a lien upon it, or when the plaintiff has only a special or partial interest in it, and is not responsible over to another person for any of the damages recovered. These cases fall within neither of these exceptions.
The conversion by Murphy and those acting under him was when he purchased the schooner, and took possession of her as his own. This is a distinct conversion from the conversion of the hull by Cabot. The damages for this conversion by Murphy and his co-defendant cannot be enhanced by the increased value of the schooner from the repairs and changes in her condition they made after they had converted her to their own use, but must be confined to the value of the schooner as she lay on Coffin’s Beach. If damages are recovered for this conversion for the full value of the schooner as she lay on Coffin’s Beach, and are paid, the title to the schooner vests in [440] Murphy and his co-defendant as of the time when they took possession of her, and the plaintiff’s right of action against Cabot is necessarily discharged. If damages are recovered against Cabot for the full value of the hull, and he pays them, it seems that these damages must be regarded as a'satisfaction pro tanto of the judgment against Power and Murphy. Cabot may have his action against his vendors for the value of the hull, on the ground of an implied warranty of title, if there were such a warranty, but that is immaterial to the rights of action of the plaintiff.
Dresser Manuf. Co. v. Waterston, 3 Met. 9, was the case of a conditional sale, and Green v. Farmer, 4 Burr. 2214, is the only case cited for the rule of damages adopted; but in Green v. Farmer the question argued was whether “ the defendants have a lien upon these goods for more than the price of dyeing,” and it was decided that they had no lien for a general balance of account, but only for dyeing the particular goods. In conditional sales the vendee has ordinarily a right to sell his interest, whatever it may be. Day v. Bassett, 102 Mass. 445. Currier v. Knapp, 117 Mass. 324. Chase v. Ingalls, 122 Mass. 381. Newhall v. Kingsbury, 131 Mass. 445.
But if there be an exception to the general rule of damages, when an action in the nature of trover is brought against a purchaser from a conditional vendee, who has improved the property while in his possession, it is not necessarily applicable to these cases, because here the original taking was tortious. In replevin, any improvements of the property attach to and go with the property replevied. In trover, when the property has been improved in value after the conversion, the form of the action does not render it necessary that damages should be given for the improved value; and the general principle is that the damages, shall compensate the plaintiff for what he has lost. The rule of confining the damages to the time of the conversion, with interest from that time, has been adopted in this Commonwealth as the most satisfactory; and many difficulties are avoided which arise under any other rule, when the value of the property is fluctuating, or when the property has been improved in value or changed in form by the wrongful taker after the conversion and before the trial. In the event of successive conversions, if the value [441] of the property at the time of the first conversion were always taken as the test of damages, then it might often happen that a defendant who had subsequently converted the property would be held to pay more than the property was worth when he converted it. The damages caused by one wrong would be measured by those caused by another. Kennedy v. Whitwell, 4 Pick. 466. Stone v. Codman, 15 Pick. 297. Greenfield Bank v. Leavitt, 17 Pick. 1. Murphy and his co-defendant had no right to convey to Cabot, as against the plaintiff, the improvements they had made upon the hull, and as the title continued in the plaintiff, we know of no cases which decide that, under the circumstances disclosed in these exceptions, Cabot is not liable in damages for the market value of the hull at the time and place of its conversion by him. The question does not arise whether the damages recoverable against Cabot can in any event exceed the whole amount of damages recoverable against Power and Murphy. The ruling of the court upon the measure of damages in the action against Cabot was correct.
The remaining question is the measure of damages in the action against Power and Murphy. These defendants converted the schooner as she lay on Coffin’s Beach in Annisquam Harbor. If there was no market for such a vessel at Annisquam, it was her value as she lay there that the defendants are liable to pay. But in determining her value there by her value elsewhere, a reasonable allowance must be made “ for the probable cost of getting her off, repairing her, and getting her ” to market, “ less also a reasonable allowance for diminution in her market value on account of having been ashore.” These allowances were made. The risks and chances of getting her afloat and getting her to market must also be taken into account. If there was no market at Annisquam, the learned justice had a right to consider, in assessing damages, the market value in St. John, if that was the principal market, or one of the principal markets, in which such vessels are bought and sold, and it was practicable to attempt to carry her there. He had a right also to consider other markets; the test is what buyers of vessels, from St. John, Boston, or other ports, would pay for her as she, lay on Coffin’s Beach, if all the facts of her condition were known. If there were no direct satisfactory evidence of this, and the [442] court was satisfied that St. John was the best market, and that it was practicable to attempt to take her there, her market value when taken to St. John could be considered; but, in addition to the allowances made from her market value in St. John, there should have been an allowance for the fair value of the risks of getting her there. If she were properly repaired for the voyage, tlie usual rate of insurance for such a vessel on such a voyage would be evidence of the value of the risk of taking her from the port of repair to St. John. Perhaps a fair salvage for getting her off and bringing her to a port of repair, when the salvors would be entitled to nothing except out of the property saved, would be evidence of the amount of the allowance to be made for the risk and cost of removing her to such a port. We think the rule of damages adopted was too liberal under the circumstances stated in the exceptions, and that there must be a new trial in the second action, upon the amount of damages only. Bourne v. Ashley, 1 Lowell, 27. Saunders v. Clark, 106 Mass. 331. Coolidge v. Choate, 11 Met. 79.
Ordered accordingly.