Page:Federal Reporter, 1st Series, Volume 9.djvu/890

 MABBH V. UNION PACIFIC BY. 00. 875 �defendant received the goods with knowledge that a through contract had been made for carrying them to their destination., And if defend- ant was advised of the terras of the contract before it performed the part assigned to it, there would be force in the suggestion that by such performance the contract was acoepted. Itis not necessary, however, to go 80 far, for the fact that a through contract and payment were made, and that defendant had knowledge of it, is enough to defeat the lien. Independently of that circumstanoe there may be room for debate whether one who has paid the price of carriage can be f ur- ther charged in respect to the same matter ; whether all companies who have a part in the contract and perform that part shall not be regarded as accepting the contract; whether any of the companies in the Une of transportation after the first shall be taken to be the agent of the shipper to make a new contract for him, when, by acting for himself he has praetically denigd the authority of another to act for him.: But these are points with wbich we are not now concerned. The jury have found, upon sufficient evidence, that defepdant received the goods with knowledge of the fact that a through contract for carrying them had bepn made, and that plaintiff had paid for the service, and that, of itself, displaces the lien on which defendant relies. �This is enough to show that the action may be maintained, for troverlies for the value of goods illegally withheld under a claim of lien for freight money. Adams v. Clark, 9 Cush. 215. �Objection is made to the plaintiff as a witness to prove the value of the goods, on the ground that he had no knowledge of the market for Buch goods in Denver. Many cases are cited to the point that the market price in the place of conversion must control; a proposi- tion which cannot be controverted. Whenever it appears that there is anything like an established price in the market, for which the articles in controversy can be replaced, that price will measure the damages for converting such articles. But for household goods, more or less worn, there is no established price, unless it be that at which second-hand goods of the same kind are sold. And although people who discontinue housekeeping may be compelled to accept that priee, no one will contend that it is the full value of the goods. The fact that goods in use, if sold at all must be sold at a sacrifice, is too plain for argument, and therefore the price of such goods in market will not be adequate compensation to one who is deprived of his goods by a wrong-doer. Perhaps the best way to arrive at the value of such goods would be to show the price in market of new goods of the samo ��� �