concluding that vehicles fall within the general rule for measuring damages because “automobiles have a well established market value”
How later courts described this case
- concluding that vehicles fall within the general rule for measuring damages because “automobiles have a well established market value”
- acknowledging an exception to the general rule for measuring damages when the mar- ket value of a good will not provide “ ‘just compensation’ ” because the “goods * * * are not ordinarily objects of com- merce and have no market value”
- noting that other measures may be used if no market value exists for the converted property
Written by the judges who cited it.
The opinion
DUNCAN, J.
(Pro Tempore) concurring in part; dissenting in part.
I concur in the majority opinion insofar as it holds that the evidence did not warrant the award of punitive damages.
I dissent from the majority opinion insofar as it holds that the measure of damage for the conversion in this case must be based on market value at time of conversion.
When one converts property owned by another, the title is regarded as having passed to the defendant who is liable for its value. Singer v. Pearson-Page Co., 50 Or 526 , 115 P 158 . However, a purchaser under a conditional sales contract, though having the right to acquire title, has only a special interest in the goods purchased. Richardson v. Bouthillier, 193 Or 354, 360 ; 238 P2d 212 . In such cases where the con *365 verter is the vendor this special interest is deemed to he measured by the amount paid on the purchase price and it is this interest which passes to the vendor who retained the title from the inception of the contract.
That the ends of justice may vary the rule on the measure of damages in a given case is recognized by Barber v. Motor Investment Co., 136 Or 361 , 298 P 216 , and Genova v. Johnson, 213 Or 47 , 321 P2d 1050 .
In the present case plaintiff had paid approximately $800 and had the use of the vehicle for some months before the conversion. It may be assumed that the trial court found the market value rule ineffective to allow plaintiff just compensation.
It appears probable that defendant may have been misled during the trial by plaintiff’s pleading and evidence of the market value and thereby deprived of an opportunity to offer evidence of value of plaintiff’s use of the vehicle as an offset. For this reason I am of the opinion that the judgment for plaintiff should be set aside and the case returned to the circuit court for retrial.