court in that case: "Such a standard of damages, growing out of the nature of the act and the form of the action, is reasonable, and does justice to both parties. It saves to the otherwise innocent defendant his labor and money, and gives to the owner the enhancement of the value of his property growing out of other circumstances, such as a rise in the market price, a difference in price between localities, and other adventitious causes." Our statute provides that the jury shall assess the value of the property. But that is merely as the basis of recovery in case a delivery cannot be had. The intent was to fix the value that the plaintiff was entitled to recover. Thus, in case of a lien or other special interest, the value to be fixed would be the amount of that lien or interest. Booth v. Ableman, 20 Wis. 21. And although, in strict law, the plaintiff is the general owner of the property, yet, when it is once settled that he ought not to recover the value it has received from the defendant's labor, the application of the rule would seem to place him upon substantially the same footing with the owner of a special interest, so far as ascertaining the value is concerned. Perhaps the best way in such a case would be to direct the jury to find the actual entire value of the property, and to find specially the amount to which its value had been enhanced by the defendant's labor. And then, in case of judgment for the plaintiff, it would be in the alternative, for a delivery, or, if that could not be had, for the amount of the difference between the two sums thus found.

It is quite probable that this question was not distinctly presented to the court below. But it seems to be fairly raised by the motion for a new trial, on the ground that the verdict was against the law and the evidence; and that motion ought to have been granted.

For this reason the judgment must be reversed, and the cause remanded for a new trial.

BY THE COURT.-Ordered accordingly.

CHAPTER XIII.

DAMAGES WHERE OWNER HAS A LIMITED INTEREST.

Where There Is More Than One Owner Interested.

BREWSTER v. WARNER.

136 Mass. 57. 1881.

The plaintiff, on September 15, 1881, hired a horse and carriage from the livery stable of one Foster in Boston to drive to Beacon Park and return. Just before reaching the Park gate, a servant of the defendants, who was driving a pair of horses hitched to a hack, carelessly as it was alleged, drove against the carriage in which the plaintiff was driving, and injured it. This action was brought to recover the damages so sustained.

Foster was the owner of the carriage injured. The plaintiff told Foster to send the carriage to a repair shop and have it repaired, and he would pay the bill. The carriage was repaired, and the bill for repairs was made to the plaintiff, and presented to him for payment, but he had not paid it at the time of trial.

This was all the evidence as to the ownership, use, and repairs of the carriage. The defendants requested the judge to rule that, upon this evidence, the plaintiff could not recover, regardless of the question of negligence. But the judge ruled otherwise, and found for the plaintiff, and the defendants alleged exceptions.

J. O'Toole, for the defendants.

A. O. Brewster, for the plaintiff.

HOLMES, J. The modern cases follow the ancient rule, that a bailee can recover against a stranger for taking chattels from his possession. Shaw v. Kaler, 106 Mass. 448; Swire v. Leach, 18 C. B. (N. S.) 479. See Year Book 48 Edw. III. 20, pl. 8; 20 H. VII. 5, pl. 15; 2 Rolle Abr. 569, Trespass, P. pl. 5;

Nicolls v. Bastard, 2 Cr., M. & R. 659, 660. And as the bailee is no longer answerable to his bailor for the loss of goods without his fault, his right to recover must stand upon his possession, in these days at least, if it has not always done so. But possession is as much protected against one form of trespass as another, and will support an action for damage to property, as well as one for wrongfully taking or destroying it. No distinction has been recognized by the decisions. Rooth v. Wilson, 1 B. & Ald. 59; Croft v. Allison, 4 B. & Ald. 590; Johnson v. Holyoke, 105 Mass. 80. The ruling requested was obviously wrong, as it denied all right of action to the plaintiff, and was not confined to the quantum of damages.

Even if the question before us were whether the plaintiff could recover full damages, his right to do so could not be denied as matter of law. A distinction might have been attempted, to be sure, under the early common law. For, although the bailee's right was undoubted to recover full damages for goods wrongfully taken from him, this was always accounted for by his equally undoubted responsibility for their loss to his bailor, and there is no satisfactory evidence of any such strict responsibility for damage to goods which the bailee was able to return in specie.

But if this reasoning would ever have been correct, which is not clear, it can no longer apply when the responsibility of bailees is the same for damage to goods as for their loss, and when the ground of their recovery for either is simply their possession. Any principle that permits a bailee to recover full damages in the one case, must give him the same right in the other. But full damages have been allowed for taking goods, in many modern cases, although the former responsibility over for the goods has disappeared, and has been converted by misinterpretation into the now established responsibility for the proceeds of the action beyond the amount of the bailee's interest. Lyle v. Barker, 5 Binn. 457, 7 Cowen, 681, n. (a); White v. Webb, 15 Conn. 302; Ullman v. Barnard, 7 Gray, 554; Adams v. O'Connor, 100 Mass. 515, 518; Swire v. Leach, 18 C. B. (N. S.) 492. The latter doctrine has been extended to insurance by bailees. De Forest v. Fulton Ins. Co., 1 Hall, 84, 91, 110, 116, 132; Crompton, J., in Waters v. Monarch Ins. Co., 25 L. J. (N. S.) Q. B. 102, 106.

If the bailee's responsibility over in this modern form is not sufficient to make it safe in all cases to recognize his right to recover full damages, even where it was formerly undoubted, at least it applies as well to recoveries for harm done to property as it does to those for taking. Rindge v. Coleraine, 11 Gray, 157, 162. And if full damages are ever to be allowed, as it is settled that they may be, they should be recovered in the present case, where the plaintiff appears to have made himself debtor for the necessary repairs with the bailor's assent. Johnson v. Holyoke, ubi supra. It is not necessary to consider what steps might be taken if the bailor should seek to intervene to protect his interest.

Exceptions overruled.

CHAPTER XIV.

BREACH OF WARRANTY.

Difference Between Price and Value of Article.

MORSE v. HUTCHINS.

102 Mass. 439.

Tort for deceit in making false and fraudulent representations to the plaintiff touching the business and profits of a firm of which the defendant was a member, and thereby inducing the plaintiff to buy the interest of the defendant in the stock and good will of the firm. A count in contract for the same cause of action was joined. Answer, a general denial and a plea of a discharge in bankruptcy.

At the trial in the Superior Court, Brigham, C. J., ruled that the discharge in bankruptcy was a defense to the second count, but not to the first count; and the plaintiff relied on the first count only.

The judge instructed the jury that "the measure of damages would be the difference between the actual value of the stock and good will purchased at the time of the purchase and the value of the same had the representation been true."

The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

GRAY, J. The objections that either the joinder of a count in contract with the count in tort, or the certificate of discharge in bankruptcy, would defeat the plaintiff's right of action in tort for the defendant's false and fraudulent representations, were hardly relied on at the argument, and are groundless. Gen. Sts., c. 129, par. 2, cl. 5; Crafts v. Belden, 99 Mass. 535; U. S. St. 1867, c. 176, par. 33.

The rule of damages was rightly stated to the jury. It is now well settled that, in actions for deceit or breach of warranty, the measure of damages is the difference between the