Francis H. (Francis Hermann) Bohlen.

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principles, and were sufficient. It is not necessary to consider in
detail those prayed for. They do not reach the point upon which,
in our view, the case turns.

Exceptions overruled.'^



(b) Knowledge that the chattel is the subject of property.



SIR FRANCIS VINCENT v. LESNEY.
Court of Common Pleas, 1625. 1 Croke, Charles 18.

Trespass : for that the defendant accipitrem ipsins Francisci
percussit with his staff, upon which stroke the hawk died. The
defendant pleaded not guilty ; and it was found for the plaintiff,
and damages assessed to six pounds.

Secondly, it was alleged, that the declaration was not good, be-
cause it is said accipitrem ipsins Francisci, and he doth not show
that she was reclaimed ; for a hawk is feroc naturae, and, if not re-
claimed, the plaintiff' can not have any property in her, nor can she
be said to be ipsins Francisci: And to confirm this Spencer s case
was cited 5 Co. 34. — But the court held the declaration to be good
enough, being in an action of trespass for striking and killing, &c.
which he only may have who hath the possession. And it differs
from Spencer's case ; for there it was an action of trover and con-
version, which lies not but of a hawk reclaimed, and which may be
known by her vervels, bells, or by some other mark whereby notice
can be taken of her owner. Whereupon it was adjudged for the
plaintiff.

"No intention of gain to the wrongdoer or to any one else is essential, if
an injury be done to the owner by an act negativing his right of property.
But when the chattel is not known to be property, there can be no interference
with the ownership and no conversion without an appropriation. In such case
a defendant might in some other form of action be made to answer for any
benefit acquired by himself, or for any injury done to the property by a wrong-
ful act, but if he did not use the chattel as property, he could not in trover be



3



'Accord: Waring v. Penna. R. Co.. 76 Pa. 491 (1874). no conversion as
against carrier to consume oil wrongfully delivered by mistake, unless de-
fendant knowingly took advantage of it: Tousley v. Board of Education. 39
Minn. 419 (1888). the plaintiff, a member of the defendant Board, approved
the payment of the purchase-price of wood which he now claims, to a third
party from whom the defendant had innocently purchased them.



I08 SALT SPRINGS NATIONAL BANK V. WHEELER.

held to have converted it." Wardlaw, J., in Nelson v. IVheUnore, 1 Rich. 318
CS. Car. 1845), the plaintiff's slave, Frank, represented himself to the defend-
ant to be a free negro and induced him to take him as a servant to Washing-
ton, where he disappeared, it was held to be essential to inquire whether the de-
fendant knew Frank to be a slave; Quay v. McNinch, 2 Mill. C. R. 78 (S. Car.
1818), defendant at Chester, Pa., hired a runaway slave to drive him to South
Carolina, believing him to be a free negro; Glover v. Riddick, 11 Ired. 582
(N. Car. 1850), the defendant gave certificates of freedom to plaintiff's
slaves, believing them to be free, this was held to be "no evidence of an act
cf ownership on the part of the defendant — it expressly disclaims it."



(c) Intent to deal with the chattel.



SALT SPRINGS NATIONAL BANK v. WHEELER.

Commission of Appeals of New York, 1872. 48 N. Y. 492.

Hunt, C. The advantage of an action in trover, rather than
an action in assumpsit, in the collection of a debt, is apparent. It
gives a right to hold to bail during the pendency of the action, and
the right of imprisonment upon an execution, in addition to the
usual resort to the property of the defendant. To procure this ad-
vantage the plaintiffs have passed by their plan and obvious remedy,
of an action against the defendant for a breach of contract, and
have brought an action of trover. The question is whether they
can sustain it.

During the autumn of 1865, the defendant being indebted to the
firm of Jaycox & Green in the sum of $1,012.18, .that nrm drew
upon him for the amount in three several bills of exchange at one
month each. These bills were discounted by the plaintiff at about
the time of their several dates, and had all matured before the 30th
day of December. On that day one of them had been due two and
a half months, the second nearly two months, and the last a few
days. These drafts were severally transmitted by the plaintiff" to
the defendant for acceptance and payment, he being engaged in
the business of a banker also. Before the 30th day of December
the defendant failed and made an assignment. On that day the
plaintiff's agent demanded of him the three drafts in question. He
replied that he thought he had returned them to the plaintiff. Upon
reflection and examination he stated that he could not find them.,
and that he might have burned them up in destroying other papers
that he considered of no value. It was not pretended by any witness
that the defendant asserted any title to the bills or claimed any right
to hold or retain them. There was no reason to dotibt the a-^curacy
of the defendant's statement. The judge finds that they were lost,
mislaid or destroyed through the negligence of the defendant. He
also finds that he "converted, the same."

To authorize the action of trover, two things are necessary:
I. Property in the plaintiff' with a right of possession ; and 2. A
conversion by the defendant of the thing to his own use. This con-



MULGRAVE V. OGDEN. IO9

version consists of the appropriation of the thing to the party's own
use and beneficial enjoyment, or in its destruction, or in exercising
dominion over it in defiance of the plaintifif's right, or in withhold-
ing it under a claim of title, (i Greenl. Ev., § 642, and cases cited.)
The destruction referred to as constituting a conversion is an inten-
tional destruction, not an accidental act. Thus, a misdelivery of
goods by a bailee is a conversion. (Id., and Deming v. Barclay, 2
B. & A. 702: Scyd V. Hay, 4 T. R., 260.) But the accidental loss
by the carrier is not. (Ross v. Johns, 5 Burr. 2825 ; Dwight v. Ben-
ton, I Pick. (INlass.) 50.) A zvrongfnl sale is a conversion, but a
purchase in good faith is not in the first instance a conversion. (Id.,
§ 642.) The accidental loss or destruction of an article by one law-
fully in its possession has never been held to be a conversion.
{Bromley v. Coxzcell, 2 B. & P., 438; Cairns v. Bleecker, 12 J. R.,
300; Jervis v. Jolliffe, 6 id., 9.)

Judgment reversed.^



SECTION 3.
Non Feasance.



. MULGRAVE v. OGDEN.

Queen's Bench, Hilary Term, 1591. Croke, Elisabeth, 219.

Action sur trover of twenty barrels of butter; and coi5nts
that he tarn negligcnter ciistodivit that they became of little value.
Upon this it was demurred, and held by all the justices, that no ac-
tion upon the case lieth in this case ; for no law compelleth him that
finds a thing to keep it safely ; as if a man finds a garment, and
suffers it to be moth-eaten ; or if one findeth a horse and giveth it
no sustenance ; but if a man find a thing and useth it, he is answer-
able, for it is conversion; so if he of purpose misuseth it, as if one
finds paper and puts it into the water, &c. ; but for negligent keeping
no law punisheth him. Et adjournatur.



Mn Wellington v. JVentzvorth,S IMetc. 548 (Mass. 18-44), the plaintilT's cow.
which he had negligently allowed to be at large, joined the defendant's herd,
and was driven with it from Massachusetts to New Hampshire for pasture.
The defendant never discovered that there was a strange cow in his herd un-
til his return, havinar without his knowledge lost one of his own, so that the
accession of the plaintiff's cow merely filled up the herd to its proper number.
He immediately returned the cow, with a calf which it had had, to the plain-
tiff. It was held that there was no conversion. See also. Young v. Vaug'an,
1 Houst. 331 (Del. 1S57\ where it was held that trespass de bonis aspcrtatis
would not lie in closely similar facts; and J'an Valkenbnrgh v. Thayer, 57
Barb. 196 f N. Y. 1870). where it was held to be no conversion to drive a flock,
with which the plaintiff's sheep had mingled, to the defendant's knowledee,
to the latter's premises, where the sheep were separated and the plaintiti's
driven back to the place where they had joined the flock.



no HAWKINS ^'. HOFFMAN.

HAWKINS V. HOFFMAN.
Supreme Court of New York, 1844. 6 Hill 586.

Action on the case, tried at the New York circuit in May, 1843,
before Kent, C. Judge. The declaration contained counts against
the defendant as a common carrier of passengers and goods on the
Hudson River, and complained of the loss of the plaintiif's trunk
and its contents. There was also a count in trover.

The plaintiff was a merchant who employed one Mason as his
traveler, going from place to place with samples of his goods. In
May, 1842, Mason took passage at New York .on the defendant's
steamboat for Poughkeepsie, having with him, together with other
baggage, a trunk containing samples, the property of the plaintiff,
which he put on board the boat at New York. On arriving at
Poughkeepsie this trunk was not put in Mason's carriage but was
left on the dock, and while Mason was looking up his other baggage,
was put back on the boat, probably by some of the hands who
handled the baggage and who supposed it had been landed by mis-
take. The trunk was carried on to Albany and when Mason went
there the next day in search of it it could not be found. ^

The plaintiff contended that even if the trunk be regarded as
merchandise, and not as the necessary baggage of Mason as a trav-
eler, the defendant was answerable for the act of his servant in
returning the trunk to the boat and that the cause should go to the
jury on the count in trover.

The judge, however, ordered a nonsuit, which the plaintiff now
moved to set aside.

By the Court, Bronson, J.^ Trover will lie where the goods
have been lost to the owner by the act of the carrier, though there
may have been no intentional wrong; as where the goods are by
mistake, or under a forged order, delivered to the wrong person.
(Void V. Harhottle, Peake Cas. 49; Devereux v. Barclay, 2 Barn. &
Aid. 702 ; Stephenson v. Hart, 4 Bing. 476 ; Lubbock v. Inglis, i
Stark. R. 104.) But it will not lie for the mere omission of the car-
rier; as where the property has been stolen, or lost through his
negligence, and so can not be delivered to the owner. The remedy
in such cases is assumpsit, or a special action on the case. (Anon.,
2 Salk. 655 ; Ross v. Johnson, 5 Burr. 2825 ; and see Deivell v. Mox-
son, I Taunt. 391; 2 Saund. 47, f; McCombie v. Davies, 6 East,
538.) Mere nonfeasance does not work a conversion of the prop-
erty; and although the owner may have another action, he can not
maintain trover. Here, the trunk was lost, and the plaintiff can
only recover, if at all, upon the counts which charge the defendant
as a carrier.^ A demand and refusal would not alter the case, for



*The facts are much condensed from those iriven in the report.

*A large part of the opinion, holding that the trunk was not the necessary
baggage of a traveler, is omitted.

'Accord: Emory v. Jenkinson, Tappan 254 COhio 1818). horse kicked by
another horse while in the custody of the defendant, who acted either as inn-



FARRAR V. ROLLINS. Hi

as the trunk was either stolen or lost the defendant could not de-
liver it. Demand and refusal are only evidence of a conversion
where the defendant was in such a condition that he might have
delivered the property if he would.

New trial denied.



FARRAR V. ROLLINS.
Supreme Court of Vermont, 1864. Z7 Vt. 295.

Trover for a sled. Plea: Not guilty. Verdict for plaintiff.

Poland, C. J. It is fairly to be inferred from the exceptions
that the plaintiff's sled was in the defendant's possession at the
time the plaintiff requested the defendant to return it.

The plaintiff did not claim that the defendant obtained posses-
sion of it wrongfully, but that he loaned it to him, or to his servant,
Cole, so that there was no conversion by a wrongful taking. But
the plaintiff claims that it was unlawfully detained and withheld
from him by the defendant when he called for or demanded it.

The plaintiff requested the defendant to return the sled to his
(the plaintiff's) house, where ne got it. This the defendant refused
to do, on the ground that when Cole borrowed the sled he borrowed
it for himself, and not for the defendant. The defendant made no



keeper or agister, in either case his liability was in an action on the case for
negligence; Alabama &c. R. Co. v. Kidd. 35 Ala. 209 (1859) ; Davis & Son v.
Hurt, 114 Ala. 146 (1896), goods negligently lost by warehouseman: Ross v.
Johnson, 5 Burr. 2825 {\772) : Bowlin. v. Nye, 10 Cush. 416 (Mass. 1852);
Wamsley v. Atlas S. S. Co., 168 N. Y. 533 (1901) ; Parsons v. United States
E.v. Co., 144 Iowa 745 (1909), all cases where goods were negligently lost or
injured in the course of carriage by a common carrier; Tinker v. Morrill, 39
Vt. 477 (1866), negligent custody of goods received from' attaching officer;
Dearbount v. Union Bank, 58 Maine 273 (1870) ; Savage v. Smythe. 48 Ga. 562
(1873) ; failure to pay a debt for which the defendant had pledged the plain-
tiff's stock with the latter's consent, held to be no conversion ; Jones v. Gil-
more, 91 Pa. 310 (1879). But see Donlin v. McQuadc, 61 Mich. 275 (1886),
where it was held to be the duty of the bailee (a skating rink proprietor) to
preserve property entrusted to him (skates checked by a patron) and hisre^
fusal to return them, because of his inability to find them, was a conversTot^
and see Thompson v. Moesta, 27 IMich. 182 (1873). A fortiori, the bailee is
not liable where the goods are taken from him without consent by superior
force, Abraham v. Nunn, 42 Ala. 51 (1868) ; or by officers acting under regular
or apparently regular legal authority, Traxlor v. Hughes, 88 .-Ma. 617 (188^) ;
Niaqara Ins. Co. v. Campbell Stores, 101 App. Div. (N. Y.) 400 (1905),
affirmed 184 N. Y. 582 (1906) : Clegg v. Boston Warehouse Co., 149 Mass. 454
(1889).

Nor is a man liable in conversion because he did not drive from his
premises or plant the plaintiff's slave, who had come there without his invita-
tion, Te.vington &c. R. Co. v. Kidd, 7 Dana 245 (Kv. 1838) ; Jones v. Allen,
1 Head 626 (Tenn. 1858).

A man who. by negligence or positive misconduct, injures or causes the
injury of another's property not in his possession is not giu'lty of trover
Smith V. Archer. 53 111. 241 (1870), an owner of "breachy'' cattle, not liable
for neighbor's crops consumed by them when they escaped from their pasture;
Jones V. Allen, 1 Head 626 (Tenn. 1858>, negro stabbed at corn husking at
which whisky had been given to all present, black and white alike.



112 CONSOLIDAIED COMPANY V. CURTIS.

claim to the sled, and had no objection to the plaintiff's taking it;
he only refused to carry it to the plaintiff's house, claiming he was
under no obligation to do so. If the borrowing was really on behalf
of the defendant, so that it was his duty to have returned it to the
plaintiff', his refusal to do so was no conversion; it was a mere
breach of contract, for which he might be liable in a proper action.
The principle is undoubted that where one has the property of
another in his possession, with no right to retain it, and being called
on to surrender it to the owner, refuses, he is guilty of conversion,
and trover will lie. But here was no refusal to surrender the sled
to the plaintiff, and no withholding it from him ; indeed, the plain-
tiff did not ask to have it delivered to him. He claimed that the
defendant should carry the sled to his house, which the defendant
refused. If this refusal was wrongful, it was no conversion. There
was no repudiation of the plaintiff's right to the sled, and no asser-
tion or exercise of any dominion over it by the defendant incon-
sistent with the plaintiff's right. The plaintiff could have his sled
when he called for it, but insisted that the defendant should fulfil his
duty, or perform his contract by carrying it home.

Judgment reversed and case remanded.^



A-



SECTION 4.

MisfeasancSo



(a) Sale and delivery of possessioiiiD



CONSOLIDATED CO^IPANY v. CURTIS.

L. R. 1892 1 Q. B. 495.

Henn Collins, J. "There can be no conversion by a mere bar-
gain and sale without a transfer of possession. The act, unless in
market overt, is merely void, and does not change the property or



^Accord: Forehand v. Jones, 84 Ga. 508 (1889), a tenant farming on
shares refused to convey the landlord's share of the cotton picked to the gin-
house 'as he had agreed to do; the right of the owner is to take his property
at and from the place where it is. Richards v. Pitts Ag. Works, 2>7 Hun 1 (W.

Y 1885) "Mere passivitv and quiescence can not make the defendant liable
for a conversion." Gillett v. Roberts, 57 N. Y. 28 (1874), one into whose pos-
session goods have lawfully come, is not guilty of a conversion, even though
his right to possession has terminated, for neglect in or refusing to convey
them upon the owner's demand, to a place designated by the owner, Gilleti

V Roberts 57 N. Y. 28 ('1874) ; nor to remove them from his premises, Davie
V. Dame 38 N. H. 429 (1859). plaintiff permitted to erect a house on land sub-
sequently conveyed to defendant; O'Con.nell v. Jacobs, 115 Mass. 21 (1874).
The defendant is not bound to assist the plaintiff in removing his goods, nor
is silence tantamount to a denial of possession unless the g®ods are upon the



HARRIS



SAUNDERS.



113



the possession^ Lancashire Wagon Co. \\ Fitchugh, 6 H. & X. 502,
and per Brett, J. in Hollins v. Fowler, a fortiori, mere intervention
as broker or intermediary in a sale by others is not a conversion.
This is the case put by Bramvvell, L. J., in Cochrane v. Rymill, 40
L. T. N. S. 744, of an introduction by an auctioneer of a purchaser
to a vendee. -



HARRIS r. SAUNDERS.

Court of A/ypeals of South Carolina, 1835. 2 Strobhart Eq. 370, Note.

Trover for a negro.

The facts as re-put by Earle, J., were substantially as follows :

The plaintiff was an illegitimate son of one John Harris. There

was evidence that by a deed which was lost but whose contents

was proved by the draftsman and the subscribing witness, that John

Harris conveyed the negro to the plaintiff, received a life estate in



defendant's person or under his then immediate personal control, Richards v.
Pitts Ag. Works, Zl Hun 1 (N. Y. 1885).

Where, however, the action of the defendant is necessary to the plaintiff's
obtaining- legal possession and it is the HpfpnHnnt'g l^g^l d"^y ^^='-^*'-^-~^'Tf^iisil.
to_jifi to rn>n>i»rtinte ^conversioi:^ Bank of America v. .^IcXeil. 10 Bush 54 (Ky.



1873), defendant refused to transfer on its books, shares of stock for which
plaintiff was assignee with power of attorney to transfer to his own name.

^Accord: Traylor v. Horrall, 4 Blackf. 317 (Ind. 1837), neither vendor
nor purchaser liable where possession was not taken under the sale; Forth v.
Piirslcy, 82 111. 152 (1876) ; H err on v. Hughes, 25 Cal. 555 (1864), an elaborate
conspiracy to defraud the plaintiff of his goods by a sale under a void judg-
ment, held to be no conversion, the goods never being in the custody of the of-
ficer selling them, who did not attempt to deliver them to the purchaser, "it
amounted to nothing more than a verbal agreement between the parties to take
and convert the property of another. The whole proceeding was vox et
preterea nihil," Fuller v. Tabor, 39 Maine 519 (1855), taking a quit claim deed
for a house not attached to the soil and recording it, held to be no conversion:
Daz'is V. Buffum, 51 ]Maine 160 (1863), landlord giving a deed for fixtures
which tenant had right to remove; Burnside v. TwitchcU, 43 N. H. 390 (1861),
the taking of a mortgage held not to be a conversion. But where a mortgage,
though possession be not taken, injures the plaintiff's property rights, the giv-
ing of such mortgage is a conversion, Ivers & Pond Piano Co. v. Allen, 101
Maine 218 (1906), the plaintiff made a conditional sale of a piano to the de-
fendant, which not being recorded was, by statute, valid only as between the
parties thereto, the defendant mortgaged the piano to a third party who re-
corded it, held to be a conversion, though the condition of the sale had not
been broken and the piano was destroyed by fire while in defendant's posses- (c
sion. '

The mere assertion of title bv one not in possession is not a conversion,
Forth V. Pursley. 82 111. 152 (1876) ; Gillet v. Roberts. 57 N. Y. 28 (1874).
semble: not even if the goods are marked with the defendant's name, Pemiv
V. State. 88 Ala. 105 C1889), or cattle are branded with his brand. Sazvyer v.
Kenan, 95 Ga. 552 (1894). or if receipts therefor are taken out in the defend-
ant's name, if turned over to the plaintiff. Penny v. State. 88 Ala. 105 (1889).

° The case was thus put by Bramwell, L. J.. "Supposing a man were to
come into an auctioneer's yard, holding a horse by the bridle and to say, 'I
want to sell my horse, if you will find a purchaser T will pay commission.' And
the auctioneer says. 'Here is a man who wants to sell a horse, will any one huv
him?' If he then and there finds a purchaser, and the seller himself hands

8 — Bohlen's C.\ses, Vol. I.



rp



114 HARRIS Z'. SAUNDERS.

himself. John Harris kept the deed in his own possession, on his
death his administrator searched his papers, but not finding the
deed, in setthng the estate sold the negro to one Hora, who sold him
to Aliller, who sold him to Saunders, the defendant, who sold him
to one Hollingsworth before the action w^as brought ; and this was
the only conversion alleged.^

A motion for non-suit was made which the court denied. The
jury found for the plaintiff and the defendant appealed on the
ground, inter alia, that he was entitled to a non-suit, there being no
wrongful conversion of the negro and because trover will not lie on
the facts stated and proved by the plaintiff.

Curia, per Earle, J.' The first question on the motion for non-
suit is, whether there was any conversion by the defendant to sus-
tain the action. As I apprehend it will only be necessary to in-
quire what constitutes a conversion, to afford a satisfactory answer
to the question. A conversion may arise either by a wrongful tak-
ing of the chattel, or by some other illegal assumption of ownership,
by illegally using, or by misusing it ; or by a wrongful detention ;
perhaps more accurately defined by another writer, thus a conver-
sion seems to consist in any tortious act, by w'hich the defendant
deprives the plaintiff of his goods, either wholly or but for a time.
Any act of the defendant inconsistent with the plaintiff's right of
possession, or subversive of his right of property, is a conversion.
Here the defendant, after the accrual of the plaintiff's title, and
right of possession, having the slave in his own hands by purchase
from one who had no title, sold him to another who carried him
beyond the plaintiff's reach, and put the price in his pocket. H this
be not a conversion, and a very effectual one too, it is difficult to
imagine what would constitute a conversion.^ The argument is, that
inasmuch as the defendant was not aware of the plaintiff's title, he



over the horse, there could be no act on the part of the auctioneer which could
render him liable to an action of conversion." See accord, Turner v. Hockey,
56 L. J. Q. B. 301 (1887), as explained by Henn Collins, J., in Consolidated
Co. V. Curtis, L. R. 1892, 1 Q. B. 495. So "if the auctioneer or broker does
nothing more than settle the price as between a vendor and purchaser of goods
and takes his commission, he is not liable as for a conversion, should it turn
out that the vendor was not entitled to sell," Romer, J., Barker v. Furlong, L.
R. 1891, 2 Ch. 172, p. 181 ; and see Bank v. Cassidy, 71 Mo. App. 186 (1897).

As to whether a delivery of possession by a bailee, as auctioneer, to com-
plete a de facto sale known bv him to have been made, is a conversion, see Na-
tional Mercantile Bank v. Rymill, AA L. T. (N. S.) 767 (C. A. Eng. 1881).
holding it to be no conversion, but see Henn Collins, J., in Consolidated Co. v.
Curtis, L. R. 1892, 1 Q. B. 495. contra: and see Fisk v. Ewen, 46 N. H. 173
(1865) ; Bramwell. L. J., Cochrane v. Rymill, 40 L. T. (N. S.) 744 (C. A. Eng.
1879). p. 746.

^ The facts stated by Earle, J., are greatly condensed.

^The residue of the opinion dealing with the proof of the_ execution and
contents of the deed and the defendant's contention that, he being a bona fide