duct the wheat taken for settlement from whatever amount of wheat the jury should find the defendants had seized. As the verdict was for only $300, it is apparent that the jury have not found for an amount in excess of the value of the balance of the wheat taken according to plaintiff's showing, after deducting all that it is claimed was turned over by plaintiff's agent in settlement of these accounts.
The point that the evidence is insufficient to sustain the verdict is not before us, the defendant not being in position to raise it, because neither in his notice of intention to move for a new trial nor in his bill of exceptions did he specify the particulars in which the evidence is alleged to be insufficient. Comp. Laws, §§ 5081, 5090.
The fifth assignment of error presents the question of the proper measue of damages in actions for conversion. The court instructed the jury that the plaintiff was entitled to recover the highest market price at any time between the conversion and the verdict. This is declared to be the rule, under certain circumstances, by-section 4603, subd. 2, Comp. Laws: “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, (2) 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 second subdivision of the foregoing section was interpolated into it by amendment in 1885, (Laws 1885, c. 42.) Prior to that time our Code had established the rule which has the sanction of the best-considered adjudications, and which accords most perfectly with the policy of the law in awarding damages, where the doctrine of exemplary damages has no application—full compensation, without punishment. That rule was embodied in § 1980 of the Civil Code, (§ 4613, Comp. Laws,) which provides: “In estimating damages, the value of property to a buyer or owner thereof deprived of its possession is deemed to be the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time
