By the Court
Atwater, J.
The first objection raised by Appellant to the order made by the Court below refusing a hew trial, is that there was no evidence identifying the note alleged to have been transferred by Simonton to Plaintiff, with the note found to be in Defendant’s hands, and which Plaintiff- claimed. And that the alleged transfer from Simon-ton to Plaintiff, did not pass any title, there having been no endorsement or delivery of said note to Plaintiff.
By reference to the pleadings, it will be seen that the note for the conversion of which this action is brought, is particularly set forth and described in the complaint. It was re[282]*282ceived by Simonton from Hollinshead, as collateral security for another note given by Hollinshead, and was sold and assigned by Simonton to Plaintiff. The answer denies the ownership of Simonton, and alleges that “ Defendant came into possession of said note secondly described in said complaint on or about the 10th day of September, 1857, and denies that at the time aforesaid when this Defendant obtained said note that said Simonton owned or held said note, or had any interest therein, and says that at the time last aforesaid the same was owned and held by "William Hollinshead,” &c. This allegation disposes of the objection in regard to the identification of the note in Defendant’s hands, as it is an express admission by Defendant that he holds the note in suit, justifying his possession under authority from Hollinshead, in whom he alleged the title to be.
In regard.to the title of the Plaintiff, the complaint alleges that Simonton “endorsed and delivered for a valuable consideration to the Plaintiff herein, the note first mentioned and described, (the principal note) and at the same time sold, assigned and transferred to said Plaintiff the collateral note, being the note second described and set forth in this complaint, and all his right, title and interest in the same, and gave to Plaintiff a copy thereof, with an order on his agent, in whose hands said Simonton believed said note still to be, for the original.” The complaint then alleges that by reason of the acts of Defendant, the note never came into possession of the Plaintiff, and that the Defendant has transferred the note to one Pease.
The Court below has found that Simonton was the owner of the note in question, at the time of the transfer to Plaintiff, and that, for a valuable consideration, he sold the said note and all his right, title and interest in the same to Nininger. The evidence on this point is amply sufficient to justify the finding, and was admitted without objection, so far as the case shows. "We do not think it true as matter of law, that the interest or title of a party in a promissory note can only be transferred by endorsement"' or actual delivery of the note. The authorities cited by Appellants, refer to the title to be shown by Plaintiff in actions brought upon the note. This [283]*283action is not of that bind, bnt one for the conversion of the note. The note itself could not be delivered, for it was in Defendant’s bands. The right and title of Simonton to the note was not divested by the unauthorized seizure thereof by Defendant, and as he, (Simonton) by virtue of his interest in the note, might have maintained this action against Defendant, so when he transferred to Plaintiff the ownership of the note, might the latter maintain the action by virtue of such ownership. The case of Borup et al. vs. Nininger, 5 Minn., 528, is not analagous to this, as that was an action against Defendants for negligence, in allowing the endorser to be discharged from his liability. It was there held, that the assignees of the note and mortgage, (Mrs. Kemp and Nininger,) would have been obliged to show something more than the mere ownership of these instruments, supposing the claim to be assignable. Here the owner of the note has prima fade a right of action, against any party who has converted the same.
In regard to the objection that the Plaintiff could not have more than a joint interest with Kunkel in the note, that was properly a matter to be determined by the Court below upon the evidence, and with, the finding upon that point, this Court see no ground of error.
It is further objected by. Appellant that the Court erred in the assessment of damages. It appears from the case that Defendant sold this note (with other securities,) to one Pease, and received therefor, twenty bonds, known as Minnesota "State Railroad Bonds, of the denomination of $1000 each. That Defendant disposed of said bonds at eighty-three cents on the dollar, and that the proper proportion of the amount received for the bonds by Defendant, on account of the note in suit, as the same was computed and entered into the amount of the other securities, was the sum of $1,284.15, which amount the Court held the Plaintiff entitled to recover.
Mr. Sedgwick lays down the rule, that where the property sued for in trover is a chose in action, as a bill, note, bond or other security for the payment of money, it seems that the measure of damages is prima fade the amount due on the security, the Defendant being at liberty to reduce that valúa[284]*284tion by evidence showing payment, tbe insolvency of tlie maker, or any fact tending to invalidate the security. The complaint alleges that the Defendant received for this note $2,156, and demands judgment for that sum. The answer denies that Defendant has received anything on the note. This issue was not on the value of the note, or the sum due upon the face thereof, but as to what amount the Defendant had received upon the same. Whatever rule the Court may have adopted in assessing the damages, therefore, we do not see that the Defendant has been prejudiced, since the amount of the judgment is less than the face of the note with interest, and is the amount which the Court finds the Defendant has actually received therefor. In these circumstances, his liability cannot be less than the sum he has received for the note. Nor can it be material that a part of the bonds received by Defendants were undisposed of. If the Defendant received the bonds for the note, and at the time they were worth eighty-three cents, the Defendant cannot claim to escape liability on the ground that the bonds have depreciated on his hands. Under the issue raised by the pleadings, he should be held for the amount received by him for the note, that is, the value of the property at the time it was received.
■Nor could the Defendant show, by way of defence, that he received from Knox a less amount for part of the bonds than they were worth, and the Court properly excluded the evidence offered by Defendant to prove this fact.
It appears from the pleadings and case, that a part of the consideration for the bonds received by Defendant, were certain judgments and redemption titles, transferred with the other securities by Defendant to Pease. Upon the trial of the case the Defendant offered to prove that his interest in these was distinct from his interest in the Randall mortgage, and held and managed by Mr. Marshall as a separate and distinct trust from that of the mortgage, and offered to show the proportionate value of his interest in the said judgments and redemption titles, as compared with the value of his interest in the mortgage. The Court refused to permit the Defendant to prove these facts.
Whether these facts, if proved, would constitute any de-[285]
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By the Court
Atwater, J.
The first objection raised by Appellant to the order made by the Court below refusing a hew trial, is that there was no evidence identifying the note alleged to have been transferred by Simonton to Plaintiff, with the note found to be in Defendant’s hands, and which Plaintiff- claimed. And that the alleged transfer from Simon-ton to Plaintiff, did not pass any title, there having been no endorsement or delivery of said note to Plaintiff.
By reference to the pleadings, it will be seen that the note for the conversion of which this action is brought, is particularly set forth and described in the complaint. It was re[282]*282ceived by Simonton from Hollinshead, as collateral security for another note given by Hollinshead, and was sold and assigned by Simonton to Plaintiff. The answer denies the ownership of Simonton, and alleges that “ Defendant came into possession of said note secondly described in said complaint on or about the 10th day of September, 1857, and denies that at the time aforesaid when this Defendant obtained said note that said Simonton owned or held said note, or had any interest therein, and says that at the time last aforesaid the same was owned and held by "William Hollinshead,” &c. This allegation disposes of the objection in regard to the identification of the note in Defendant’s hands, as it is an express admission by Defendant that he holds the note in suit, justifying his possession under authority from Hollinshead, in whom he alleged the title to be.
In regard.to the title of the Plaintiff, the complaint alleges that Simonton “endorsed and delivered for a valuable consideration to the Plaintiff herein, the note first mentioned and described, (the principal note) and at the same time sold, assigned and transferred to said Plaintiff the collateral note, being the note second described and set forth in this complaint, and all his right, title and interest in the same, and gave to Plaintiff a copy thereof, with an order on his agent, in whose hands said Simonton believed said note still to be, for the original.” The complaint then alleges that by reason of the acts of Defendant, the note never came into possession of the Plaintiff, and that the Defendant has transferred the note to one Pease.
The Court below has found that Simonton was the owner of the note in question, at the time of the transfer to Plaintiff, and that, for a valuable consideration, he sold the said note and all his right, title and interest in the same to Nininger. The evidence on this point is amply sufficient to justify the finding, and was admitted without objection, so far as the case shows. "We do not think it true as matter of law, that the interest or title of a party in a promissory note can only be transferred by endorsement"' or actual delivery of the note. The authorities cited by Appellants, refer to the title to be shown by Plaintiff in actions brought upon the note. This [283]*283action is not of that bind, bnt one for the conversion of the note. The note itself could not be delivered, for it was in Defendant’s bands. The right and title of Simonton to the note was not divested by the unauthorized seizure thereof by Defendant, and as he, (Simonton) by virtue of his interest in the note, might have maintained this action against Defendant, so when he transferred to Plaintiff the ownership of the note, might the latter maintain the action by virtue of such ownership. The case of Borup et al. vs. Nininger, 5 Minn., 528, is not analagous to this, as that was an action against Defendants for negligence, in allowing the endorser to be discharged from his liability. It was there held, that the assignees of the note and mortgage, (Mrs. Kemp and Nininger,) would have been obliged to show something more than the mere ownership of these instruments, supposing the claim to be assignable. Here the owner of the note has prima fade a right of action, against any party who has converted the same.
In regard to the objection that the Plaintiff could not have more than a joint interest with Kunkel in the note, that was properly a matter to be determined by the Court below upon the evidence, and with, the finding upon that point, this Court see no ground of error.
It is further objected by. Appellant that the Court erred in the assessment of damages. It appears from the case that Defendant sold this note (with other securities,) to one Pease, and received therefor, twenty bonds, known as Minnesota "State Railroad Bonds, of the denomination of $1000 each. That Defendant disposed of said bonds at eighty-three cents on the dollar, and that the proper proportion of the amount received for the bonds by Defendant, on account of the note in suit, as the same was computed and entered into the amount of the other securities, was the sum of $1,284.15, which amount the Court held the Plaintiff entitled to recover.
Mr. Sedgwick lays down the rule, that where the property sued for in trover is a chose in action, as a bill, note, bond or other security for the payment of money, it seems that the measure of damages is prima fade the amount due on the security, the Defendant being at liberty to reduce that valúa[284]*284tion by evidence showing payment, tbe insolvency of tlie maker, or any fact tending to invalidate the security. The complaint alleges that the Defendant received for this note $2,156, and demands judgment for that sum. The answer denies that Defendant has received anything on the note. This issue was not on the value of the note, or the sum due upon the face thereof, but as to what amount the Defendant had received upon the same. Whatever rule the Court may have adopted in assessing the damages, therefore, we do not see that the Defendant has been prejudiced, since the amount of the judgment is less than the face of the note with interest, and is the amount which the Court finds the Defendant has actually received therefor. In these circumstances, his liability cannot be less than the sum he has received for the note. Nor can it be material that a part of the bonds received by Defendants were undisposed of. If the Defendant received the bonds for the note, and at the time they were worth eighty-three cents, the Defendant cannot claim to escape liability on the ground that the bonds have depreciated on his hands. Under the issue raised by the pleadings, he should be held for the amount received by him for the note, that is, the value of the property at the time it was received.
■Nor could the Defendant show, by way of defence, that he received from Knox a less amount for part of the bonds than they were worth, and the Court properly excluded the evidence offered by Defendant to prove this fact.
It appears from the pleadings and case, that a part of the consideration for the bonds received by Defendant, were certain judgments and redemption titles, transferred with the other securities by Defendant to Pease. Upon the trial of the case the Defendant offered to prove that his interest in these was distinct from his interest in the Randall mortgage, and held and managed by Mr. Marshall as a separate and distinct trust from that of the mortgage, and offered to show the proportionate value of his interest in the said judgments and redemption titles, as compared with the value of his interest in the mortgage. The Court refused to permit the Defendant to prove these facts.
Whether these facts, if proved, would constitute any de-[285]*285fence, or partial defence to tbe action, it is not necessary to inquire, as there is no allegation in the answer, authorizing the admission of such evidence. The answer alleges that “the said Pease agreed to purchase of this Defendant all of this Defendant’s interest in said mortgage, and in divers redemption titles of portions of the property in said mortgage described, and held by said Marshall in trust, to wit, upon the following terms:
“That this Defendant should pay to the said Pease five thousand dollars cash, and assign to him the said three notes secured in said mortgage and his interest in said mortgage and redemption titles, and that in consideration thereof said Pease should deliver to this Defendant twenty bonds,” &c.
It will here be seen that no distinction is made in these securities, nor in the trust by which they are held, nor in the assignment of the same, but the whole is treated as one act and transaction. The offer made by Defendant could not be received under these allegations, and he made no request to amend, and the evidence was properly rejected.
The Appellant also objects, that the Court erred' in allowing the witness Knox to be interrogated on cross-examination by the Plaintiff as to the proceeds of the bonds received on the Pease purchase, and as to what the Auditor received such bonds at for banking purposes. We think the evidence was proper on cross-examination. The witness in his examination in chief had been questioned by Defendant as to the value of these bonds, and had stated that it was impossible for him to say what the cash value was, — that he should suppose it was somewhere from 30 to 60 cents. It was certainly competent under this evidence on the part of the Defendant, for the Plaintiff to show if he could that the witness himself had disposed of these bonds at a higher figure than that which he named as the cash price, and also to show that the Defendant had done the same, and it was also responsive to the issue, to show what the Defendant had actually received for his bonds.' The price at which the Auditor was receiving these bonds for banking purposes, might not be very material in determining their value, but we think it was competent evidence in view of the direct examination, as a circumstance [286]*286which might be properly considered by the Court upon the question of value. Whether, however, the evidence was proper or not, as to what the auditor received these bonds at, there would be no ground for a new trial in case the Court erred, since it does not appear that the Defendant has been prejudiced by the testimony. The Court has not found the value of the bonds at the price at which they were received by the auditor, but at the price which the evidence shows the Defendant actually received for them, which was less than what the auditor was receiving them at for banking purposes.
The order denying a new trial must be affirmed.