## Facts

- In 1974, a thief stole twelve lots of antique silver from Edith Welch’s home in Cambridge, Massachusetts.
- About one month later, Dr. Harold J. Kosasky bought eleven of the twelve lots from a Brookline dealer for $2,750, though Mrs. Welch had paid over $40,000 for them over twelve years.
- The trial judge found Kosasky knew or should have known the silver was stolen.
- In 1981, Kosasky brought the silver to a Boston dealer to sell; nine lots were sold to an English dealer for $40,000, and other items remained for sale or consignment.
- One lot was a set of three James II castors; after an English dealer suggested restoration work, Kosasky authorized physical alterations in London.
- Later in 1981, Mrs. Welch saw two stolen items displayed by the Boston dealer and identified them through photographs, descriptions, and hallmarks.
- Over the next one to two years, the Welches recovered the stolen silver that Kosasky had possessed and sold.
- The Welches sued for conversion of the silver and for damages caused by the alterations to the castors.

## Issues

1. Whether damages for the altered castors could be measured by the difference between their value if returned unaltered and their value as altered, rather than being limited to the value at the time and place of the original conversion.
2. Whether attorney’s fees incurred to locate and recover property were recoverable as consequential damages in conversion, and if so, whether the award required allocation where the legal work also covered other stolen items.

## Decision

- The court affirmed liability for conversion and upheld the loss-of-use award for the eight-year deprivation.
- The court affirmed the award for diminution in value of the James II castors, measured by the difference between their value if unaltered and their value as altered.
- The court held attorney’s fees could be recoverable as consequential damages in principle, but modified (reduced) the amount to reflect a proportional allocation tied to recoverable items.
- Judgment affirmed in part and modified in part.

## Legal Principles

- In conversion, the usual measure of damages is the value of the property at the time and place of conversion, but later conduct by the converter that independently and physically damages or changes the property may support additional damages measured by the resulting diminution in value.
- A converter who knows or should know goods are stolen may be held responsible for loss in collector value caused by authorized alterations.
- Loss-of-use damages may be awarded where an owner is deprived of valuable, unique property for an extended period.
- Attorney’s fees may be awarded as consequential damages when reasonably incurred to recover wrongfully withheld property or mitigate losses and when causally connected to the defendant’s wrongdoing.
- When attorney work relates to both recoverable and non-recoverable property, the fee component awarded as consequential damages must be reasonably apportioned.

## Conclusion

The court held that a purchaser who knew or should have known silver was stolen was liable not only for conversion but also for the later diminution in value caused by authorized physical alterations to part of the property; it also allowed recovery of attorney-fee consequential damages in principle, but required a proportional allocation where the legal efforts extended beyond the items attributable to the defendant.


Welch v. Kosasky, 509 N.E.2d 919 (Mass. App. Ct. 1987)