ANDREWS, C. J.
The defendants are warehousemen, doing business at New Haven, and as such had in their possession a large amount of merchandise, mostly household furniture, belonging to the plaintiff. On the 5th day of August, 1892,
the plaintiff demanded said merchandise of the defendants, but they neglected and refused to deliver it to him. Thereupon he brought this action. The cause was tried in the Superior Court upon issues joined to the jury and seems to have been contested with great stubbornness. A great many rulings were made in respect to the admission of testimony and the instructions to the jury, and exceptions were taken. There was a verdict for the plaintiff. The defendants bring the case here by appeal. Of the rulings made and the instructions given we feel it necessary to discuss only two.
Among the merchandise so in the possession of the defendants were carpets and sundry articles of upholstered furniture. The plaintiff at the trial claimed that these had been so carelessly kept by the defendants that they had been attacked by moths and very greatly injured, and asked the court to instruct the jury that the defendants were liable for such actual damage as they should find was thereby caused to the plaintiff’s goods. The court did so instruct the jury. This, we think, was error. There is nothing in the complaint to indicate that the plaintiff would ask to recover damages of the defendants for any want of care on their part in this respect. And without such an averment there could be no recovery. The third paragraph of the complaint alleges that “the defendants did not take due and proper care of a portion of said merchandise, and so carelessly kept such portions as that they lost the means of identifying the same, and converted it to their own use; and the defendants sold the remainder of said merchandise without authority from the plaintiff for their own benefit, and so converted the same to their own use.” It is ti-ue that warehousemen must use ordinary care to preserve merchandise in their hands from injury and are liable in damages for any injury caused by an omission to use that degree of care. But when damages are sought in an action against warehousemen for such a want of care the complaint must contain averments which fairly and reasonably apprise them that that claim is to be made. 1 Cliitty’s Pleadings, 255;
Taylor
v. Keeler, 50 Conn., 346. The present complaint does not do so. This complaint
charges a conversion by the defendants of the plaintiff’s merchandise, and a conversion alone. No other cause of action is set out. So much of the complaint as avers any want of care by the defendants is quoted above. It says, indeed, that the defendants did not take due and proper care of a portion of the merchandise. It does not say that by reason of such want of care the merchandise was injured, but that thereby the defendants lost the means of identifying that portion of the merchandise and so converted it to their own use. The paragraph then goes on to say that the defendants sold the remainder of the merchandise for their own benefit, and in that way converted that portion to their own use. That is to say, the defendants are charged with converting one portion of the merchandise by losing the means of identifying it and the remainder by a sale. Upon that complaint the plaintiff was not entitled to recover for any injury happening to his furniture previous to the conversion.
Ives
v.
Goshen,
63 Conn., 82.
The defendants admitted selling the merchandise of the plaintiff. They said they had sold all of his merchandise which they had in their possession. They claimed to have done so by virtue of a'special contract between themselves and the plaintiff, according to which they had the right to sell the merchandise upon notice if the charges thereon were not paid; and they claimed that such charges were not paid by the plaintiff and that thereupon they gave notice of their intention to sell, and did sell all said merchandise at an auction ; and that out of the money received from such sale they paid themselves their charges and expenses and the balance they offered to return to the plaintiff. The plaintiff denied any such contract. He claimed, on the other hand, that he had offered to pay all charges on said merchandise, and denied that he had ever had any notice from the defendants that they intended to sell the same to pay such charges. These claims were submitted to the jury with appropriate instructions. Upon this part of the case the court instructed the jury that if they found the claim of the plaintiff to be true, that then the defendants would be liable for the fair actual
value of the goods at the time of the conversion, with interest from that date. It is conceded that this instruction was correct. To prove what the fair actual value of the merchandise was at the time of the conversion the defendants offered evidence of what the goods brought at the auction. In connection with such evidence the defendants offered to prove that the auction was extensively advertised, was attended by a large number of persons, that there was full and active competition among the buyers and that the bidding was sharp and lively, and that at the auction sale the property generally, not only that of the plaintiff but that of others, brought its fair market value. The plaintiff objected to this evidence and the court excluded it.
It seems to. us that this evidence should have been admitted. The expressions actual value, market value, or market price, when applied to any article, mean the same thing. They mean the price or value of the article established or shown by sales- public or private in the way of ordinary business. Century Dictionary; Anderson’s Law Dictionary;
Murray
v.
Stanton,
99 Mass., 348;
Cliquot's Champagne,
3 Wallace, 114.
It appears from the finding that the. court, while excluding the evidence of what the goods of the plaintiff actually brought at the sale, “ admitted proof of the fair market value of the goods at the time of the auction, from the opinion of purchasers and persons present.” The latter proof being admitted it is not easy to perceive why the former was excluded. The opinion of a witness as to the fair market value of a commodity must be formed from sales of some kind, otherwise the opinion could not be of the
market
value. The opinion of the persons present at the auction as to what was the fair market value of the goods there sold would almost inevitably be formed in part, if not wholly, from the price which the articles brought at that sale. It would seem that the jury could better judge of the fair actual value of the goods by knowing the exact price which they brought than by depending upon the opinion of witnesses as to what they ought to have brought. An auction sale such as the defend
ants claimed this one to have been, is a much more certain guide to the fair actual value of the goods sold than the opinion of any witness. “ A sale is a matter of fa.ct, not of opinion, and is direct evidence of the real worth of the thing sold.
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ANDREWS, C. J.
The defendants are warehousemen, doing business at New Haven, and as such had in their possession a large amount of merchandise, mostly household furniture, belonging to the plaintiff. On the 5th day of August, 1892,
the plaintiff demanded said merchandise of the defendants, but they neglected and refused to deliver it to him. Thereupon he brought this action. The cause was tried in the Superior Court upon issues joined to the jury and seems to have been contested with great stubbornness. A great many rulings were made in respect to the admission of testimony and the instructions to the jury, and exceptions were taken. There was a verdict for the plaintiff. The defendants bring the case here by appeal. Of the rulings made and the instructions given we feel it necessary to discuss only two.
Among the merchandise so in the possession of the defendants were carpets and sundry articles of upholstered furniture. The plaintiff at the trial claimed that these had been so carelessly kept by the defendants that they had been attacked by moths and very greatly injured, and asked the court to instruct the jury that the defendants were liable for such actual damage as they should find was thereby caused to the plaintiff’s goods. The court did so instruct the jury. This, we think, was error. There is nothing in the complaint to indicate that the plaintiff would ask to recover damages of the defendants for any want of care on their part in this respect. And without such an averment there could be no recovery. The third paragraph of the complaint alleges that “the defendants did not take due and proper care of a portion of said merchandise, and so carelessly kept such portions as that they lost the means of identifying the same, and converted it to their own use; and the defendants sold the remainder of said merchandise without authority from the plaintiff for their own benefit, and so converted the same to their own use.” It is ti-ue that warehousemen must use ordinary care to preserve merchandise in their hands from injury and are liable in damages for any injury caused by an omission to use that degree of care. But when damages are sought in an action against warehousemen for such a want of care the complaint must contain averments which fairly and reasonably apprise them that that claim is to be made. 1 Cliitty’s Pleadings, 255;
Taylor
v. Keeler, 50 Conn., 346. The present complaint does not do so. This complaint
charges a conversion by the defendants of the plaintiff’s merchandise, and a conversion alone. No other cause of action is set out. So much of the complaint as avers any want of care by the defendants is quoted above. It says, indeed, that the defendants did not take due and proper care of a portion of the merchandise. It does not say that by reason of such want of care the merchandise was injured, but that thereby the defendants lost the means of identifying that portion of the merchandise and so converted it to their own use. The paragraph then goes on to say that the defendants sold the remainder of the merchandise for their own benefit, and in that way converted that portion to their own use. That is to say, the defendants are charged with converting one portion of the merchandise by losing the means of identifying it and the remainder by a sale. Upon that complaint the plaintiff was not entitled to recover for any injury happening to his furniture previous to the conversion.
Ives
v.
Goshen,
63 Conn., 82.
The defendants admitted selling the merchandise of the plaintiff. They said they had sold all of his merchandise which they had in their possession. They claimed to have done so by virtue of a'special contract between themselves and the plaintiff, according to which they had the right to sell the merchandise upon notice if the charges thereon were not paid; and they claimed that such charges were not paid by the plaintiff and that thereupon they gave notice of their intention to sell, and did sell all said merchandise at an auction ; and that out of the money received from such sale they paid themselves their charges and expenses and the balance they offered to return to the plaintiff. The plaintiff denied any such contract. He claimed, on the other hand, that he had offered to pay all charges on said merchandise, and denied that he had ever had any notice from the defendants that they intended to sell the same to pay such charges. These claims were submitted to the jury with appropriate instructions. Upon this part of the case the court instructed the jury that if they found the claim of the plaintiff to be true, that then the defendants would be liable for the fair actual
value of the goods at the time of the conversion, with interest from that date. It is conceded that this instruction was correct. To prove what the fair actual value of the merchandise was at the time of the conversion the defendants offered evidence of what the goods brought at the auction. In connection with such evidence the defendants offered to prove that the auction was extensively advertised, was attended by a large number of persons, that there was full and active competition among the buyers and that the bidding was sharp and lively, and that at the auction sale the property generally, not only that of the plaintiff but that of others, brought its fair market value. The plaintiff objected to this evidence and the court excluded it.
It seems to. us that this evidence should have been admitted. The expressions actual value, market value, or market price, when applied to any article, mean the same thing. They mean the price or value of the article established or shown by sales- public or private in the way of ordinary business. Century Dictionary; Anderson’s Law Dictionary;
Murray
v.
Stanton,
99 Mass., 348;
Cliquot's Champagne,
3 Wallace, 114.
It appears from the finding that the. court, while excluding the evidence of what the goods of the plaintiff actually brought at the sale, “ admitted proof of the fair market value of the goods at the time of the auction, from the opinion of purchasers and persons present.” The latter proof being admitted it is not easy to perceive why the former was excluded. The opinion of a witness as to the fair market value of a commodity must be formed from sales of some kind, otherwise the opinion could not be of the
market
value. The opinion of the persons present at the auction as to what was the fair market value of the goods there sold would almost inevitably be formed in part, if not wholly, from the price which the articles brought at that sale. It would seem that the jury could better judge of the fair actual value of the goods by knowing the exact price which they brought than by depending upon the opinion of witnesses as to what they ought to have brought. An auction sale such as the defend
ants claimed this one to have been, is a much more certain guide to the fair actual value of the goods sold than the opinion of any witness. “ A sale is a matter of fa.ct, not of opinion, and is direct evidence of the real worth of the thing sold. Indeed the price for which an article is bought and sold constitutes its market value and is ordinarily the best and most satisfactory standard by which to estimate the amount at which the same or similar articles are to be appraised in the assessment of damages. The competency of such evidence cannot be made to depend on the form or mode or particular terms of the contract of sale. These circumstances may have an essential bearing on the weight to be given to the fact of sale as affecting the price and as indicating the par value of the property, and they are proper for the consideration of the jury, but they cannot operate to exclude the evidence altogether. In many cases a sale by auction would furnish very strong if not decisive evidence of value.”
Kent
v. Whitney, 9 Allen, 62;
Campbell
v.
Woodworth,
20 New York, 499;
Hutchinson
v.
Poyer,
78 Mich., 340. Such sales are ordinarily a fair test of value, the inference being a reasonable one and according to common experience that competition among purchasers will carry the price up to the real worth of the property sold.
The other rulings made in the case require no attention.
There is error and a new trial is granted.
In this opinion the other judges concurred.