It is difficult to tell, from an examination of the transcript and of appellant's brief, why this appeal was taken. It is manifestly frivolous.
But one point is made. And that is, that the Court erred in allowing us the highest market value of the stock between the conversion and the time of trial; and a labored argument is made to show that fifty-eight days is an unreasonable time within which to commence the action! It is surely not necessary for us to say anything, for the thing on its face is so plain as to need no argument.
We will, however, say this: reasonable or unreasonable time always depends upon the peculiar facts of each case. In this case the testimony shows, that from the time of the conversion until we brought the action, the stock had not advanced; hence, that we did not wait until a rise in the stock, in order that we might speculate at the expense of defendant. Had we waited for months, and until the stock had greatly risen in value, and then brought the suit, the case would have been entirely different.
Furthermore, one McDonald was claiming the stock. Under these circumstances, investigation was imperative; and taking this into consideration, and further considering that examination by an attorney must have been necessary, in order to ascertain what the rights of plaintiff were, less than two months was certainly none too much, especially as in the meantime there had been no rise in the market value of the stock.
OPINION The Court:
Section 3336 of the Civil Code is as follows: " The detriment caused by the wrongful conversion of personal property is presumed to be: 1. The value of the property at the time of the conversion, with interest from that time; or, where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party." * * *
The conversion in this case took place on the twenty-sixth day of March, 1879, and the action was brought on the twenty-third day of May, 1879. The only point made on the appeal is, that the action should have been brought at an earlier day. But we are of the opinion that there was reasonable diligence in bringing the action, within the meaning of the Code.
Judgment and order affirmed.