Francis H. (Francis Hermann) Bohlen.

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tained by the present plaintiff. Much stress has been laid on what
was said in IVard v. Macauley. But the only question there was,
whether trespass would lie under these circumstances ; and it was not
necessary to determine how far trover mij^ht be maintained. It ap-
pears now very clearly upon examining that point that trover will
not lie in any case, unless the property converted was in the actual
or implied rightful possession of the plaintiff. In this case the plain-
tiff had neither the one nor the other pending the demise, and when
that is determined perhaps he may have his goods restored to him
again in the same state in which they now are, when it will appear
that he has not sustained that damage which he now seeks to recover
in this action.

Accord: Lord v. Price, L. R. 9 Ex. 54 (1874), plaintiflr a purchaser of
goods detained bv vendor subject to his lien for unpaid purchase money;
Ayer v. Bartlett, 9 Pick. 156 (Alass. 1829) ; Fairbanks v. Phelps, 22 Pick. 535
(Mass. 1839). In Bradley v. Copley, 1 C. B. 685 (1845), the principal case was
extended to cover a case where the plaintiffs "were not in a position to re-
quire the possession of the goods" per Tindal C. J., they being holders of a
bill of sale under which the vendor was entitled to the possession till the pay-
ment of a debt due was demanded and refused or not made; and see National
Bank of Commerce of Kansas City v. Morris, 114 Mo. 255 (1892), and cases
cited therein. The bailor may, however, maintain trover against third per-
son where the bailment is determinable at his pleasure. Manders v. WiUiavis, 4
Exch. 338 (1849) ; Drake v. Redington, 9 N. H. 243 (1838) ; Hart v. Hyde. 5
Vt. 328. 330 (1833) r Root v. Chandler, 10 Wend. 110 (N. Y. 1833). The
wrongful act of the bailee in destroying or selling the property or otherwise
dealing with in a way injurious to his bailors reversionary interest terminates
the bailment and revests the right of possession in the bailee, and trover will
lie against the bailee or one purchasing from him. Cooper v. Willomatt, 1 C.
B. 672 (1845), a lease from week to week; Brxani v. IVardell, 2 Exch. 479
(1848): Sanborn v. Coleman, 6 N. H. 14 (1832); Fenn v. Bittleston, 7
Exch. 152 (1851), wrongful sale by vendee in possession under a constitutional
sale; Grant v. King, 14 Vt. 367 (1842). It is, however, held in England that
the rehypothecation or sale by a pledgee of the thing pledged, though in viola-
tion of the terms of the bailment, does not of itself terminate it or revest the
right of possession in the pledgor and trover does not lie against such pledgee
tiil tender of amount due. Donald v. Suckling, L. R. 1 Q. B. 585 (1866) ; Halli-
day v. Holgate, L. R. 3 Exch. 299 (1868) ; the weight of American authority
is contra, see Learcock v. Paxon, 208 Pa. 602 (1904), and Mullen v. Quinlan
& Co.. notes to Powell v. Sadler, post p. 155.

Where the plaintiff is out of possession when the goods are converted, he
must recover on the strength of his right to possession. Therefore the de-
fendant can set up as a defence the fact that a third person has a better title,
thoiTph not claiming to act by virtue thereof, Gadsden v. Barroivs, 9 Exchequer
(1854\ though a bailee mav not set ud such a title against his bailor, b-^ing
estooped to deny the latter's title. White v. Mullet, 6 Ex. 713 (1851). unless
evicted by such paramount title, Philips v. Robinson, 4_ Bing. 106 (1827), or
unless he has acknowledged the better title of such third party and has de-
livered the property to him or holds it for him, in which case he may defend
un'ier the title and bv the authority of such third party, Rogers v. Lambert,
L. R, 1891, 1 Q. B. 318.



^ KEYWORTH Z'. IIILU lOI

SECTION 2.

Character of Defendant's Act.

(:) Intent to acquire property or possession or assert a

right thereto.

KEYWORTH v. HILL.
King's Bench, 1820. 3 B. & A. 685.

Trover against husband and wife, for a bond and two promis-
sory notes. The declaration stated that the defendants converted
and disposed of the same to their own use. Plea, not guilty. Ver-
dict for the plaintiff.

Abbott, C. J. The question, in this case, arises upon a motion in
the arrest of judgment. The ground of the objection is, that inas-
much as a married woman cannot acquire property, the conversion
of the property can only be the act of the husband, and must be so
charged. If the allegation in the declaration, that the defendants
converted the property to their own use, necessarily imported an
acquisition of property by them, there would be considerable weight
in the objection. It seems to me, however, that that is not the
necessary import of the expression, for a conversion may be by an
^actual destruction of the property. And if the allegation does not
necessarily import that the defendants acquired a property, we are
bound, after the verdict, to consider the conversion to have taken
place by other means than by the acquisition of property. I am,
tlierefore, of opinion that the declaration is sufficient, and that this
rule should be discharged.

Bayley, J. It is quite clear in trespass that the husband and
wife might be jointly sued. The reason of which is, that the action
is founded on the wrongful act of the defendants. Now, it seems
to me, that the action of trover is founded on the tort also. The
cases cited on the part of the defendant proceed upon the supposition
that the conversion could only take place by the defendants acquiring
a property. It seems to me, however, that in trover the foundation
^f the action is not th e acquisition of property by the dffpndr^nts,
but the'depri vation of property to the plaintiffs. If the wife were
~to take up a book, and her husband desired her to put it in the fire
and burn it, and she did burn it, that would be a conversion, and
yet the husband and wife would acquire no property ; so, if a man
takes my horse and rides it, I may bring trover for the temporary
conversion. And if there can be any case of a conversion without an
tiltimate change of property, we are bound, after verdict, to imply
that it was such a conversion as the wife might be guilty of.

Rule discharcred.^



0>'



^Accord: Cattcrall v. Kenyan, 3 Q. B. (A. & E. X. S.) 310 (1842\ refusal
of an innkeeper's wife to deliver on demand the plaintiff's cattle, lodged with
her husband bv one wrongfully seizing them in execution ; compare }farslics
Case. 1 Leon. 312 (1589) ; Kon'ing v. }fanly. 49 N. Y. 192 (1872). scinhfc. in
which the early English cases are ably discussed, and it is held that a



I02 MC KAY V. PEARSON.

McKAY V. PEARSON.
Superior Court of Penmylvania, 1898. 6 Penna. 529.

WiCKHAM, J. J. S. AIcKay, the plaintiff, in the fall of 1893,
sowed five acres of wheat on a farm that he had leased from Wil-
liam Turner. At the expiration of his term, in the spring of 1894,
he removed from the farm. On July 4, 1894, the wheat was ripe
and ready for cutting, and the plaintiff, with a man and the nec-
essary machinery, went to the premises to harvest it, as it is now
admitted he had a legal right to do.

He was there met by G. W. Pearson, the defendant, who had
succeeded him as Turner's tenant, and who warned him to keep off
the land. The next morning the plaintiff again sought to gain an
entry, for the same purpose, and was again driven away. At the first
visit, the defendant, as he admits, refused to allow the plaintiff to
cut the wheat because to quote his own language, "Bill Turner
told me when I rented from him that he" the plaintiff, "had no
right to put the wheat in and had no right to the wheat." Turner
denied that he had told the defendant this, but the matter is more
interesting than important, as he could not, by anything he might say,
destroy the plaintiff's rights. The plaintiff says that the defendant
gave as a reason for excluding him, that Turner had not reserved the
wheat in the lease, and that therefore it belonged to him, the de-
fendant. On the second visit, the defendant told the plaintiff that he
had not, the evening before, claimed ownership of the wheat, but he
adhered to'his positive refusal to not permit the plaintiff to enter
and harvest it. The plaintiff then, perforce accepting -the situation,
took his machinery and man and went away, evidently hopeless,
as he had a right to be, of being ever able to get his property.

Looking at all the evidence, it is plain that the defendant, un-
qualifiedly and absolutely, denied the plaintiff's title, and did and
said that which must have led 'the latter to conclude, that his wheat
was lost to him. He could draw no other inference from what had
happened. If one locks my money in his safe or my horse in his
stable and coolly tells me "I don't claim to own your property but
I will never let you have it," he is guilty of a conversion. By what
magic could the plaintiff gather his crop without going on the
land? In the very early case of Baldwin v. Cole, 6 Mod. 212, Lord

married woman is alone guilty of an act of conversion whereby no property
was acquired or asserted, though the husband must be joined since the wife
could not be sued alone; Heckle v. Lurvey & Wife, 101 Mass. 344 (1869), in
which a wife was liable jointly with her husband for goods bought of a thief
in her husband's absence, though bought by his orders; but see Tohey v.
Smiih, 15 Gray 535 (Mass. 1860), where a declaration setting forth the con-
version by a husband and wife "to their own use" was held to be bad on de-
murrer, see Berry v. Nevys, Cro. Jac. 661 (1823), and Gallop v. Symson. Style
115 (1648), acco'rd. Wheeler & Wilson Mfg. Co. v. Heil, 115 Pa. St. 487
(1886), in which it was held immaterial whether the contract of bailment,
made by the wife alone under which she held a sewing machine which she
refused to return, was one which as a married woman she had capacity to
make.



MC KAY V. PEARSON. IO3

Holt, speaking of an absolute and unexplained denial, said : "The
very denial of goods to him that hath the right to demand them is
an actual conversion, not only evidence of it, for what is a conver-
sion but the assuming upon one's self the property and right of dis-
posing of another's goods." "Where the refusal is absolute and
unexplained, it is plenary evidence of a conversion:" 26 Eng. & Am.
Ency. of Law, 731. "Every conversion consists of, first, a dealing
with the goods in a manner inconsistent with the right of the person
entitled to the immediate possession ; second, an intention in so
doing to deny his right or assert a dominion which is inconsistent
with such right :" Ibid. 735. One who purchased land wdiereon
was felled timber that had been sold to another, of which sale he,
the purchaser of the land had notice, refused to permit the pur-
chaser of the timber to remove it. He was held liable for conver-
sion: Sherman v. Way, 56 Barb. 188.^

It is not, and never was, claimed that the defendant was hold-
ing the wheat for Turner. He certainly was not keeping it for the
plaintiff. The inevitable conclusion therefore is, that he was retain-
ing it solely for some purpose of his own, and whether that pur-
pose was malicious or mercenary is of no importance. The test is,
not what the defendant has or has not acquired, but what has been
the effect of his act with respect to the plaintiff, and whether it
amounts to an absolute denial and repudiation of the plaintiff's
right. Had the defendant informed the plaintiff that he intended
to exclude him only temporarily, or long enough to get time to in-
vestigate his title, there would be reason for saying that the evi-
dence of conversion was doubtful. But, according to the tenor of
the defendant's own testimony, he had already inquired concerning
the matter of title, and made up his mind that the plaintiff had no
right to the wheat. It is too clear that he thought he had a technical
advantage, over the plaintiff, and meant to hold it. There was
nothing equivocal or uncertain in his conduct. He intended to pre-
vent the plaintiff from getting the wheat.

Lastly, will the action of trover lie under the circumstance de-
tailed? In Pennsylvania, growing crops, unlike trees and other
spontaneous productions of the earth, are personal property, and
it can not be doubted that in the present case the wheat was as fully
personalty, while attached to the soil, as though actually severed



^ The defendant, on whose land the plaintiff's logs were lying, refused to
allow him to enter to take them away and threatened to sue him if he removed
them, and afterward sold a part of them, accord on very similar facts, N^ichols
V. Newsom, 2 Murphy 302 (\. Car. 1813), but see the dissenting opinion of
Hall, J., holding that mere denial of right to enter to retake the goods even
coupled with threat of suit not to be a conversion, he regarding physical re-
sistance to the removal as necessary. The mere ''issuance and service" of an
injunction against a tenant in possession, removing certain improvements
which the landlord claimed as fixtures is held not to be a conversion, Laccv v.
Beaudry, 53 Cal. 693 (1879), see accord: FcJcher v. McMillan, 103 Mich. 404
(1894), but see McGozven v. Young, 2 Stew. 276 (.\la. 1830). where it was
held conversion to enjoin an owner from removing his property from the
state.



104 MC KAY V. PEARSON.

therefrom: Backenstoss v. Stahler's Admrs., 33 Pa. 251. It might
therefore be converted, by cutting or carrying it away, by applying
the torch to it in the field, or by excluding the owner, when the
crop was ready for harvesting, in such a manner as to clearly indi-
cate to him an unequivocal and absolute denial of his right to the
grain, and a fixed intent to permanently deprive him of all control
over it. In the latter instance the conversion would be complete at
once, although the wrongdoer neither then nor thereafter made nor
expected to make any profit out of the transaction. Had he re-
tained the plaintiff's wagon in his field until the weather had de-
stroyed it, just as the elements destroyed the wheat crop, in the
present case, who will say that he would not have been liable in
trover? Nor would the plaintiff have been obliged to await the
physical destruction before bringing suit. In Stafford v. Ames, 9
Pa. St. 343, a case much like the one in hand, the ground of the
'•decision was that the plaintiff's agent "was prevented from cutting
and threshing the wheat ; he was illegally kept out of possession and
had a right to immediate possession."

We see no error in the charge or answer to the points. The
question, as to whether or not there was a conversion, was fairly
left to the jury. The expression of opinion as to this matter, made
by the learned trial judge, was fully justified by the facts, and the
rule as to the measure of the damages was correctly given. It would
answer no good purpose to discuss, in detail, the many assignments
of error. They are all overruled.

Judgment affirmed.-

^Accord: Dale v. Jones, IS Ind. App. 420 (1896), facts similar to those in
principal case; Farrar v. Chauffetete, 5 Denio 527 (X. Y. 1848), defendant
forbade plaintift to remove machinery from a building purchased by defendant
at sheriff's sale, claiming it as a fixture; Boiling v. Kirby, 90 Ala. 215 (1889) ;
Hinckley v. Baxter, 13 Allen (95 Mass.) 139 (1866), owner of land forbade
removal of building paced on it by his consent, claiming that it was a fixture
and so part of the realty; Watts v. Lehman, 107 Pa. 106 (1884) ; Vilas v.
Mason, 25 Wis. 310 (1870); Nichols v. Newsom, 2 Murphy 302 (N. Car.
1813) ; Burgess v. Isherwood, 101 Mich. 319 (1894) ; Stout v. Stop pel, 30
Minn. 56 (1882).

In Berry v. Friedman, 192 Mass. 131 (1906), it was held that it w'as not
conversion to refuse to tear down a part of the wall of a dwelling-house in
order to permit the removal of a piano, bought in instalments, upon the re-
version of the title to the vendor by the nonpayment of an instalment, even
though there was an express agreement to do so, but in Harder v. Heineman,
114 App. Div. (N. Y.) 794, 100 N. Y. S. 250 (1906), there being no express
agreement, it was held that [since the owner of the property is bound to per-
mit the removal of property he allows to be placed thereon, even if the re-
moval involved making an opening in the walls, and in Kelsey v. Durkce, Z3
Barb. 410 (X. Y. 1861)], the refusal to tear down a wall to permit an outgoing
tenant to remove heavy machinery was held to be conversion, Ford v. Roberts,
14 Colo. 291 (1890), accord: Where, however, the plaintift" fails to remove
his property within a reasonable time and then removal becomes impossible by
reason of the defendant's use of his land bv building thereon, this is not a
conversion, Stackpole v. Eastern R. Co., 62 N. H. 493 (1883).

The defendant need not be in possession of the goods, if he prevents the
plaintiff from taking possession of them, Wansbrough v. Maton, 4 A. 8z E.
884 (1836), the defendant leased land to the plaintiff', who thereon erected a
building not attached to the freehold, the lease having terminated and the



HILLS V. SNELL. IO5

HILLS V. SNELL.
Supreme Judicial Court of Massachusetts, 1870. 104 Mass. 173.

The plaintiff, a warehouseman of flour, had in storage two lots
of flour, both marked D, one belonging to Grecnough, the other to
Morse & Co. The first was low grade flour, worth about $6.25 the
barrel, the other a high grade flour, worth $13 to $14 the barrel.
Defendants bought twenty-eight barrels of flour of Kemble & Co..
who. to fill the order, bought of Greenough and received a delivery
or.ler. A teamster of Kemb'e & Co. took the order to the plain-
tifl's, who by mistake delivered twenty-eight barrels of the Morse
(V Co. flour to the teamster, v;ho forwarded it to the defendants.
']"he mistake was discovered about a month Ir'.lcr.

Wells, J. The defendant acquired no title to the flour deliv-
ered to him by mistake. He had no contract of purchase with the
owner, nor with the plaintiffs, who were bailees of the owner. If
he had received it with knowledge of the mistake, or used it after
notice thereof, he would have been liable for the conversion. But,
under the instructions of the court, the jury must have found that
the defendant was not chargeable with notice or knowledge that



plaintiff having quitted possession, and the land being in the possession of an-
other lessee, the defendant being on the premises, ordered men, sent by the
plaintiff to remove the building, to leave the premises; Bolliv.g v. Kirby, 90
Ala. 215 (1889) ; Guthrie v. Jon^s, 108 Mass. 191 (1871), landlord refused to
allow tenant in possession to remove equipment of an eating room, claiming
them as fixtures: Bristol v. Burt, 7 Johns. 254 (1810), the defendant, collector
of the port of Oswego, fearing that the plaintiff intended to ship goods to
Canada in violation of the Embargo Act, refused him clearance papers and
stationed guards around the warehouse in which the goods were stored to pre-
vent the plaintiff from removing them; Crockett & Woodson v. Beaty. dr
Humph. 20 (Tenn. 1847) ; contra: Boobicr v. Boobier, 39 Maine 406 (1855) ;
PoUey V. Lenox Iron Jl'orks, 2 Allen (84 Mass.) 182 (1861) ; England v. Cou-
ley, L. R. 8 Exch. 126 (1873), per Kelley. C. B., and Bramwell, B., Martin, B.,
contra. See also, McDonald v. Bayha, 93 Minn. 139 (1904), where the defend-
ant, in whose name the plaintiff had bought goods, in consequence of a quarrel
as to compensation, having instructed the seller not to deliver the goods to
the plaintiff, was held guilty of conversion.

As to whether it be conversion to prevent the plaintiff in possession of
goods from removing them, see, holding that it is, Bristol v. Burt, 7 Johns.
254 (X. Y. 1810); Afartin, B.. in England v. Coxi'lcy, L. R. 8 Exch. 126
(1873) ; Guthrie v. Jones, 108 Mass. 191 (1871), where the defendant claims
them, as fixtures, to be his propertv— in neither Bristol v. Burt, 7 Johns. 254
(N. Y. 1810), nor England v. Cowley, L. R. 8 Exch. 126 (1873^, did the de-
fendant claim property in the goods, though in England v. Coioley, the de-
fendant refused to allow the goods to be moved in order not to lose his right
to distrain them for rent due upon the premises on which they were; contra:
Kellev. C. B., and Bramwell, B., in England v. Cou'ley. L. R. 8 Exch. 126
(1873) ; Guthrie v. Jones, 108 !\Iass. 191 (1871), where the defendant claimed
practically identical v.-ith those in Guthrie v. Jones. 108 Mass. 191 (1871). In
both England v. Cozvley, L. R. 8 Exch. 126 (1873), and Bristol v. Burt, 7
Johns. 254 (N. Y. 1810), a denial of the right to remove deprived the own-
er of substantiallv all the actual benefit of possession, the plaintiff, in England
V. Cozi'lcy. being the holder of a bill of sale, and the goods in Bristol v. Burt
being only valuable for sale or manufacture.



I06 HILLS V. SNELL.

the flour delivered was not the same he had bought ; and that he
used it in good faith, deriving no benefit from the plaintiffs' mis-
take. No demand appears to have been made upon him while the
flour was in his possession. So that, if he is to be held responsible
at all, it must be on the ground that he used the flour as his own,
"supposing and believing it to be the flour he had bought'' and paid
for.

The declaration contains one count in contract, upon implied
assumpsit for the price or value of the flour ; and one in tort for its
wrongful conversion. The action is brought by the warehouseman,
and is founded on their possession and special rights as bailees. But
for all purposes of the defense the case stands precisely as if they
were the general owners.

The elements of tort are also wanting. The unauthorized ap-
propriation of personal chattels will generally be sufficient of itself
to enable the true owner to maintain an action for their conversion.
A purchase, in good faith, from one who has not title and no right
to transfer the property, will not constitute a defense. Even an
auctioneer or broker, who sells property for one who has no title,
and pays over to his principal the proceeds, with no knowledge of
the defect of title or want of authority, is held to be liable for its
conversion to the real owner. Coles v. Clark, 3 Cush. (Mass.) 399.
]ViUiains v. Merle, 11 Wend. (N. Y.) 80. Hoffman v. Carozv, 20
Wend. (N. Y.) 21 ; S. C. 22 Wend. (N. Y.) 285. Courtis v. Cane,
22 Verm. 232. But this severe rule of law will not be applied when
the act of appropriation can be justified as having been authorized
in any manner by the owner of the property. Thus when, upon a
conditional sale, the property is delivered and time given for com-
pliance with the condition, one who purchases and resells the prop-
erty before the right to perfect the title, by such compliance, has
been terminated, is not liable for a conversion to the general owner
who subsequently resumes his right to its possession. Vincent v.
Cornell, 13 Pick. (Mass.) 294.^ When the owner has given to an-
other, or permitted him to have, control of the property, no one can
be held responsible in tort for its conversion who merely makes
such use of the property, or exercises such dominion over it, as is
warranted by the authority thus given. Strickland v. Barrett, 20
Pick. (Mass.) 415. Burbank v. Crooker, 7 Gray (Mass.) 158.

In this case, the plaintiffs delivered the flour to Kemble & Has-
tings as the flour purchased by them from Greenough. Against
the plaintiffs therefore, the delivery to Kemble and Hastings and
the sale by them to the defendant was an authority to him to treat



^See Rodgers v. Brittain, 39 Mich. 477 (1878), purchaser of chattels at
a sale in apparent conformity with a valid chattel mortgage held not to be
conversion.

Contra: Hart v. Carpenter, 24 Conn. 427 (1856) ; Sims v. James, 62 Ga.
260 n879) ; Fisk v. Ewen, 46 N. H. 173 (1865) ; Bean v. Edge, 84 N. Y. 510
(1881), trover against landlord who had caused chattels conditionally sold to
tenant to be distrained. As to validity of conditional sales as against pur-
chaser from vendee for value without notice, see Harkness v. Russell, 118 U.
S. 663 (1886).



SIR FRANCIS VINCENT V. LESNEY. lO^

it as his own. That it was so dehvered by mistake might have
entitled the plaintiffs to reclaim the property from one having it in
possession ; or to recover its value from one who had disposed of
it with knowledge of the mistake. Chapman v. Cole, 12 Gray
(Mass.) 141. But they can not take advantage of their own mis-
take to convert into a tort that which has been done in good faith
m pursuance of authority given by themselves.

The instructions given to the jury were in accordance with these