Opinion of the Court, per FOLGER, J. which did arrive, a sum certain was due from them to the obligee. In this case there are no data, either in the condition of the bond, or the allegations of the complaint or in the proofs, to show a sum certain. The amount, if ascertainable, was not to be paid to the obligee, but to third persons. It is not like Thomas v. Allen (1 Hill, 145), where the condition was to pay the obligee $800, by satisfying a mortgage which it seems that the obligee was in some way liable to pay. Fourth That it is an action on a bond, conditioned for the performance of a covenant or written agreement for the doing of an act by the principal obligor. This, we think, is the true view of the character of the bond itself, and as the parties have treated the action as upon the bond as a bond, such is the true view of the action. (See Nelson v. Bostwick, 5 Hill, 37.) Then it falls within the purview of the Revised Statutes (2 R. S., § 5, p. 378, et seq.); see case last cited. It was needed that the plaintiff should assign in his complaint specific breaches for which he brought his action. (Section 5; Patterson v. Parker, 2 Hill, 598.) He has done so. It was needed that the tribunal should assess the damages of the plaintiff thereby and specify the amount. (Section 6.) This was done. The judgment would then be for the penalty of the bond, and further judgment that the plaintiff have execution for the damages so assessed. (Section 9.) This has not been done. It was entered otherwise. It was an irregu larity, to be corrected by motion in that respect. But upon what evidence was the assessment of those damages made? And this question comes up under the exception to the conclusion of law. As stated above, the assessment seems to have been merely a casting of interest on the amount named in the penalty. But actual damages may not have been suffered to that amount. All the proof on the subject is this: The principal obligor sold to the plaintiff's testator a piece of land for $950; which were paid. On the land sold was a mortgage for $1,000; which was also upon other lands. By some undisclosed Opinion of the Court, per FOLGER, J. agreement, the terms and bearings of which are not made known, the principal obligor was bound to pay but a portion of that mortgage-how great a portion is not shown—and that piece of land was bound, as to the other mortgaged premises, to pay but that portion. The mortgage was foreclosed, and a part only of the piece of land bought by the testator was sold at foreclosure sale. How much that part was, or what was the value of it, does not appear; nor is any fact shown by the testimony which fixes the actual damages of the plaintiff by that sale. We think that there should have been some proof of the amount of the actual damage. It is plain that the provisions of the Revised Statutes above cited require that, in actions on such a bond as this, there should be a finding of the actual damages; and that, though the judgment be entered for the penalty, that there should be a further judgment for execution for the damages assessed, and that the execution issued in pursuance thereof should be indorsed for the collection of the damages thus assessed (§§ 9, 10), and a collection of the sum in any such case will be a satisfaction of the judgment until further breach of the condition of the bond. (Sections 11, 12.) It is useless to refer to the varying adjudications upon the subject of what the obligee may recover in an action on a bond in a penal sum, and with a condition underwritten. We think that the provisions which we have cited from the statutes must control this case. The principle which is enacted by them was declared in Dole v. Moulton (2 Johns. Cas., 205), where it was said that, if a bond is conditioned for the performance of a covenant, the penalty is not recoverable, and that quantum damnificatus is the true thing in issue. Lyon v. Clark (supra), is relied upon by the plaintiff; but, as we have seen, that was the case of a bond conditioned for the payment of money. Brainard v. Jones (18 N. Y., 35), is also relied upon. It is there said: That, whether a surety, at the time of his default, can be held beyond the penalty of his bond, is a question of the interpretation and effect of his contract; and, whether interest can be computed Opinion of the Court, per FOLGER, J. after his default, when the effect is to increase his liability, is a question of compensation for the breach of his contract. It appeared, in the case last cited, that the sureties resisted payment of the bond, until the amount unpaid by the terms of the condition, exceeded the penalty of the bond. In that case, the obligee could not be compensated by the payment of the penalty only. But there may be cases of bonds, conditioned for the doing of an act or the performance of a covenant, when full compensation will be obtained by the pay ment of a less sum than that named in the penalty; and then the rule of compensation only, should also apply. It is 'said there, that it may be a reasonable doctrine that a surety, who has bound himself under a fixed penalty, has marked the utmost limit of his liability. So, in Branguin v. Perrot (2 W. Bl., 1190), Ch. J. DE GREY said: "The bond ascertains the damage by the consent of parties." We are of the mind that, in the light of all the decisions, these expressions are now to be construed as meaning that the amount of the penalty is the limit, beyond which the liability of the surety will not go if he is prompt to pay it, not that the damage may never fall within that limit. As we have seen (supra), on a bond for performance of a covenant quantum damnificatus is the issue. If the essential thing is, that there shall be compensation to the obligee by the surety for the breach of the contract, that may sometimes fall within the sum named in the penalty, and may sometimes go beyond it. In either case, the surety will be discharged by a payment of the penal sum, promptly made upon the happening of a breach of the condition. If he delays payment, his liability may be carried further in a bond conditioned for the payment of money, on the authority of Brainard v. Jones (supra), and up to the amount of the penalty and interest thereon from the time of the breach and up to the date of the judgment. In a case of a bond conditioned for the performance of an act, that case is not a controlling authority. The bond there was not such. Our judgment is, that it is not the true rule that in an action. upon such a bond the damages are invariably the amount of Statement of case. the penalty and the interest, though it may sometimes amount to that; but that by force of authoritative adjudications and by the effect of the statutes cited, the actual damages are to be proven; and what they are shown to be, within or up to, the penalty and interest may be recovered; but no more than that. Applying this rule to this case, it is seen at once that there must be a new trial, so that the plaintiff may prove that which he has not yet proven, what have in fact been his damages from the sale on foreclosure of a part of the piece of land sold and conveyed to him by the principal obligor. Some questions may arise as to what shall be deemed the quantum of damages; whether the value of the piece of land sold at the time of the sale, or the amount of the consideration paid therefor and interest; and whether the delay of the plaintiff to prosecute has affected him in the amount which he may recover. But these we will not anticipate. The sole question now undetermined being the amount which the defendant should pay, his liability to pay something being settled, this case may never appear again in the courts. The judgment should be reversed and a new trial ordered. HORACE J. THAYER, Appellant, v. SIMEON B. MANLEY, In an action for the conversion of a promissory note the measure of damages is the face of the note and interest, unless it appear that it is of less value because of something which legitimately impairs or diminishes its value or affects its validity. The rule is the same whether the note is that of the plaintiff or of a third person. Where in an action for the conversion of three notes made by plaintiff, it appeared that defendant refused to deliver up the notes on demand; that after the action was commenced, but before trial one of the notes became due, and that all of them were still in the possession of plaintiff. Held, SICKELS.-VOL. XXVIII. 39 defendant Statement of case. that as when the action was brought defendant had it in his power to dispose of the notes to a bona fide holder in whose hands they would have been vaid, and plaintiff was then entitled to recover the actual damage which might accrue to him, this right was not impaired by the subsequent maturity of one of the notes before a transfer; also that as the judgment and a satisfaction thereof would transfer title to the notes to defendant, plaintiff was entitled to recover the full value; but that to avoid circuity of action a provision should be incorporated in the judgment giving to defendant the right to cancel and return the notes as a satisfaction of the damages. Although in such case the plaintiff has a remedy by an equitable action to restrain defendant from transferring, and to compel the cancellation and surrender of the notes, he is not obliged to resort to this remedy, but may sue for the conversion. Thayer v. Manley (8 Hun, 551), modified. (Submitted March 21. 1975; decided April 16. 1878.) APPEAL from order of the General Term of the Supreme Court in the fourth judicial department, reversing an order of Special Term denying a new trial, and granting a new trial unless defendant comply with certain conditions specified, in which case directing a dismissal of the complaint. (Reported below, 8 Hun, 550.) This was an action to recover damages for the alleged conversion of three promissory notes. The complaint alleged and plaintiff's evidence tended to show that defendant in October, 1872, by means of certain false and fraudulent representations induced plaintiff to execute and deliver to defendant three promissory notes of $500 each, payable to defendant or bearer two, three and four years from date respectively. Before either of the notes. became due plaintiff demanded them of the defendant, who refused to deliver them up. One of them fell due, however, after the action was commenced and before the trial. Defend ant still held the notes at the time of, and produced them on the trial, but did not cancel or offer to deliver them to plaintiff. The court charged the jury that if they found for the plaintiff he was entitled to recover the amount of the notes with interest, to which defendant's counsel duly excepted. |