(after stating the facts). It is earnestly insisted that the evidence is not sufficient to warrant the chancery court in finding that there was a conversion of the cotton by the Newberger Cotton Company. We cannot agree with contention of counsel for appellant. According to the testimony of A. L. Cray, he shipped 600 bales of cotton from his warehouse in Prairie View, Logan County, Arkansas, to Port Smith, Arkansas, and the cotton in question was in the lot. The Lesser-Cold-man Cotton Company insisted on allowing it to sell the cotton, and T. M. Mason, of the T. M. Mason Cotton Company of Port Smith, was employed to make the sale. Cray heard Mason talking with somebody at Little Eock about the sale of the cotton, and understood that there was an agreement to -sell it for ten cents the pound. After the conversation on the telephone was closed, he assisted in making an invoice -of the cotton and consigning it to the Newburger Cotton Company at Little Eock, Arkansas. The cotton in controversy was included in the list of cotton shipped by the Lesser-Coldman Cotton Company at Port Smith to the Newburger Cotton Company at Little Eock. The latter company paid the Lesser-Cold-man Cotton Company for the cotton, and refused to pay aupellees for it. Practically the undisputed testimony shows that -neither Cray nor the Lesser-Coldman Cotton Comoany had permission from the apoellees, who were the owners of the cotton, to sell it. It is true that appellant purchased the cotton upon the faith that the Lesser-*262Goldman Cotton Company had the right to sell it, and that the latter company sold it believing it had a right to do so as the cotton factor of A. L. Gray. These facts, however, do not relieve appellant from liability. Appellant’s liability to appellees rests upon the ground that it has converted, though in good faith, and under a mistake as to its rights, the property of the appellees. Appellant is therefore liable to respond in damages for the value of the cotton.
It is next contended by counsel for appellant that the measure of damages for the conversion of the cotton is the value of the cotton at the time of the conversion. This is the general rule, but it has been modified with respect to the conversion of property the market value of which is liable to frequent and great fluctuation. The proper measure of damages for the conversion of cotton, which is subject to depression and inflation of price in the market, is the highest price for which the same grade of cotton has been sold between the time of the conversion and a reasonable time after notice to the owner of -such conversion; in other words, the price at which the owner might have replaced the cotton within a reasonable time. Galigher v. Jones, 129 U. S. 193; Wright v. Bank of Metropolis (N. Y.), 1 L. R. A. 289; 6 Am. St. Rep. 356, 18 N. E. 79; Dimock v. U. S. Nat. Bank (N. J. L.), 39 Am. St. Rep. 643; Citizens St. R. Co. v. Robbins (Ind.), 42 N. E. 916; Brewster v.Van Liew (Ill) 8 N E. 842; and Wiggin v. Federal Stack, etc., Co. (Conn.), 59 Atl. 607.
Judge Peckham, who delivered the opinion in the case cited above from New York Court of Appeals, said that justice and fair dealing are both more apt to be promoted by adhering to the rule which imposes the duty upon the plaintiff to make his loss as light as possible, notwithstanding the unauthorized act of the defendant. It has been well said that to adopt the value as existing at the time of actual conversion would enable the wrongdoer to make the market for the owner and deprive him of his cotton, whether he so wills or not.
*263On the other hand, to adopt the highest value between the time of actual conversion and the trial would be to encourage the owner to delay and speculate upon the chances of hig*her markets without assuming the chances of lower markets. Justice can only be done in such cases by requiring the factor or broker to pay a sum sufficient to put the other party in a position as good as he had before the sale, and this can more nearly be done by holding the true and just measure of damages in these cases to be the highest intermediate value of the cotton between the time of its conversion and a reasonable time after the owner has received notice of it to enable him to replace the cotton.
There is nothing in the case of Hudson v. Burton, 158 Ark 619, which conflicts with this rule. In that case the landlord had a lien on his tenant’s crop for supplies furnished him to make and gather the same. The tenant moved away from the place, without paying his account. The landlord, under our statute, was entitled to the possession of the crop, in order that he might subject it to his lien for supplies furnished the tenant. He took possession of the property without resorting to law; but he had a lien on the property, which he might have asserted in the courts, and for that reason he was .only held liable to the tenant for the value of the crop at the time of its conversion.
In the case before us, appellant had no lien of any kind whatever on the cotton, and the rule announced above applies for the reasons given. The cotton was sold about the first of August, 1921, and the owners found out about it about the 10th of September, 1921. Cotton at that time had doubled in value, and the owners demanded the market value of that date.
Under the rule announced above, the finding of the chancellor in favor of appellee was fully justified by the evidence, and the decree will therefore be affirmed.