We think that the judgment must be reversed for several reasons: First, it appears from the unreversed or unmodified judgment of the court below that this plaintiff had been defrauded and had been deceived in turning his store over to the defendant and the court can-' celed said contract because of said fraud. That placed the title back in the original plaintiff and the plaintiff was entitled to have left in the grocery store the same amount of goods that was there when he transferred it to the defendant, and so the appropriation of these goods amounted to a conversion and whether the action takes the form of a conversion or an action for the value of the goods, it does not make very much difference under our code of procedure.

What the action is named is not very material. The truth is, if this plaintiff was, induced to pai‘t with his property by fraud and deceit on the part of the defendant in a judgment upon a proper action to rescind, the plaintiff must be placed in statu quo, and the parting with title was not voluntary at all and an action for conversion could be maintained, without first making a demand. The bringing of the suit was demand enough. Now, of course, the burden was upon the plaintiff to prove that these goods were of some value, and for that purpose he introduced certain evidence to show that there was Six Hundred Dollars worth of goods taken out of this store. The objection was made that the parties could not testify as to the value of the goods. Well they were in business and they owned the goods and they can always testify as to the value, not that it is conclusive, but it is some evidence of value. A person may not know the retail price of a barrel of sugar nor the wholesale price of it, but if he has a barrel of sugar in his store, he can testify as to its value and it surely would have some value, and if that had been converted wrongfully to another person’s use, he would have a right to maintain an action at least for nominal damages.

Now in this case there is evidence of the parties to show the value of the goods in this store, and we think that while the evidence is not so good as that of an expert, yet it was competent and of some value. But beyond that there is an admission by counsel for defendant that a certain man, if there, would testify that this man Miller admitted that he had taken at least Fifty Dollars of goods from the store. Now just why that was not enough to carry this to the jury, if there were a jury, or upon which to base a judgment in favor of the plaintiff for that much at least, it is difficult to understand. We think the court erred in refusing to receive this testimony and he erred in directing a verdict for the defendant in face of the admissions in this case and the evidence.

We think that this ease must be reversed, first, because the judgment of the court was wrong in refusing to admit the evidence, the judgment was wrong in refusing to render some judgment in favor of the plaintiff on admissions of counsel in open court, and on the further ground that the judgment is contrary to and against the weight of the testimony.

For these reasons the judgment must be reversed and remanded to the Municipal Court for a new trial.