Francis H. (Francis Hermann) Bohlen.

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105 M. p. 5, conversion had become concurrent with trespass for a wrongful
disseisor taking, it was not till Tinkler v. Poole, 5 Burr. 2657 (1770), that tro-
ver was held to lie for a wrongful distress. Shipivich v. Blanchard, 6 T. R.
298 (1795). Reynolds v. Shuler, 5 Cowen 323 (N. Y. 1826) ; Connah v. Hale,
23 Wend. 462 "(N. Y. 1840), accord, and see the learned notes to Bassett v.
Maynard and Tinkler v. Poole in 1 Ames Cases on Torts, pp. 273-274.

.\ wrongful attachment or lew is a conversion, Abercrombie v. Brad-
ford. 16 Ala. 560 (1849) : Jones v.' Buzzard, 2 Ark. 415 (1839) ; Woods v.
Keves. U Allen 236 (Mass. 1867) : Johnson v. Farr. 60 N. H. 426 (1880) :
Stuart v. Phelps, 39 Iowa 14 (1874) ; Goode v. Lanqley et al, 7 B. & C. 26
(1827) ; Glasspoole v. Young, 9 B. & C. 696 (1829).

It is no more necessary in an action of trover than in an action of tres-
pass that there is a manual seizure or removal of the goods, Wintnngham



YEAGER V. WALLACE, 1 37

V. Lafoy, 7 Cowcn 735 (X. Y. 1827) ; Miller v. Baker, 1 Mete. 27 (Mass. 1840).
it is enough that the ofticer exercises dominion over the goods against the
owner's will and to the exclusion of the owner's possession; Johnson v. Farr,
60 N. H. 426 (1880), Reynolds v. Shuler, 5 Cowen 323 (X. Y. 1826), Shipu^ch
V. Blan^hard, 6 T. R. 298 (1795), where the plaintiff to redeem the goods
paid the rent and expenses; Abercrombie v. Bradford, 16 Ala. 560 (1849), the
plaintiff to regain possession gave a bond. Xor is the taking the less tortious
when one yields to the force displayed and surrenders the goods without re-
sistance to a marshal armed with a warrant, Mathezvs v. Stewart, 44 Mich.
209 (1880).

YEAGER V. WALLACE.

Supreme Court of Pennsylvania, 1868. 57 Pa. 365.

Error to the District Court of Philadelphia.

Action of Trover by John M. Yeager, Jr., and A. DeHart, trad-
ing as Yeager & DeHart, to the use of Wallace receiver, etc., of the
partnership against John ^M. Yeager, Sr., to recover the value of
marble which the defendant claimed to have purchased from the
firm.

One witness for the plaintiff testified that about the beginning
of i860, he was at the yard of the partners when the Yeagers,
father and son, were there engaged in removing stone ; that the
father gave orders to the carmen to take the stone. After some had
been removed, DeHart came to the yard and in the hearing of the
father, as the witness thought, forbade the carmen to remove any
more, but the carmen continued to remove it. The marble was re-
moved to the yard of the father, and the son also went to that yard
and worked there. Another witness testified that when DeHart
forbid the removal of the marble, the father told the carmen to
go on, that he had bought it ; DeHart said it was not his ; all the
marble worth carrying away was taken ; the father paid the son
something over $400.

There was evidence for the plaintiff that the marble taken was
worth $1,411.

The defendant gave evidence that the marble taken was worth
about $500. The son testified that on the 8th of January, i860,
he had sold the marble to his father for $473.35, received the money
and delivered the stone the next day, that the actual cost of what
he sold was $380; he also testified that DeHart looked into the car
when the stone was being removed and went away without saying
anything ; and that the witness had transacted all the business of the
partnership during its continuance.

The defendant requested the court to charge, iiitiv alia:

"The plaintiffs cannot recover in this action, unless proof be
made that they made a d(?mand upon the defendant before this suit
was brought, for the delivery of the marble in question, and the
defendant refused to deliver it."

The Court refused to charge as requested.

The jury found a verdict for the plaintiffs for $3,243.39.

The defendants obtained a rule for a new trial ; but upon the



138 YEAGER 1: WALLACE,

plaintiffs releasing all the verdict above $1,835, the rule was dis-
charged.

Agnew, J.^ — In the absence of an actual conversion, a demand
and refusal must be proved, to maintain the action of trover against
the defendant who came lawfully into the possession of the goods.
Butjiih&Fe-the possession itself is obtained by force or fraud a ^e-

"Tfi and is not necessary. T he wrongful ajrt^ of Ihe party _ is tlie evi-
de nce of his mtent i on U) con j yert. These are familiar principles

"amply supported bythe authorities cited and not denied by the
plaintiff in error. But he takes the position that a sale by a compe-
tent party, and possession delivered under it, gives such a lawful
possession as to require a demand and refusal, even though the
transaction be tainted with fraud. This, however, is a misconcep-
tion of the state of his case. The court below left it to the jury to
find whether the sale made by the younger Yeager to his father
was a gross violation of the duty he owed to his partner, Mr.
DeHart, whether it was made without DeHart's assent, and whether
under the circumstances giving the father notice of DeHart's dissent.
The evidence is that DeHart came to the shop while the elder Yeager
was there directing the removal of the stones and objected to the
removal, that he ran up to the carmen and told them to remove no
other stone at their peril, and that the elder Yeager was within hear-
ing distance. The judge also left it to the jury to say whether the
sale was a fraud upon the partnership ; in point of fact a collusive
sale between the son and father in which neither ought to have
participated. The verdict therefore establishes that the sale was
made by one partner against the dissent of the other, with notice oi
the dissent to the purchaser, and in fraud of the partnership. It was
not a sale by a party competent to pass a lawful possession to the
purchaser. The partnership relation makes each partner the agent
of the others when acting within the scope of his power ; but when
his agency is denied and his act forbidden by his copartner with
notice to the party assuming to deal with him as the agent of the
firnijjlis act is not that of the firm, but his individual act only._The
case presented tlierefore a possession acquired by fraud in the face
of the dissent of the other partner, making it a tortious and not a
lawful possession. Demand and refusal were not necessary to estab-
lish a conversion.

Finding no error in the record, the judgment is affirmed.^



Only so much of the opinion is given as relates to the 7th point.

Where goods are delivered under a contract of sale induced by the ven-
dee's fraudulent misrepresentations, the vendor can, on discovering the fraud,
without previous demand, bring trover against the vendee, Strayhorn v. Giles,
22 Ark. 517 (1861) ; Thompson v. Rose, 16 Conn. 71 (1844), semble; Moody
V. Drown, 58 N. H. 45 (1876), or against any subvendee of his who has par-
ticipated in the fraud; Luckey v. Roberts, 25 Conn. 486 (1857), or has knowl-
edge thereof, or of facts sufficient to put him on inquiry, Gage v. Epperson, 2
Head 669 (Tenn. 1859) ; Butters v. Haiighwout, 42 111. 18 (1866) ; Thurston
V. Blanchard, 22 Pick. 18 (Mass. 1839) ; Holland v. Bishop, 60 ^linn. 23
(1895).

Where the fraudulent vendee assigns the goods to an assignee for the ben-
efit of creditors, who is, of course, not a purchaser for value, "the legal title



FOULDES V. WILLOUGHBY. 139

FOULDES V. WILLOUGHBY.

In the Exchequer, June 1, 1841. 8 M. & W. 540.

Trover for divers, to wit, two horses. Plea : Not guilty. The
cause was tried before Maule, J., at the last spring assizes for
Liverpool, and on the 15th of October, 1840, the plaintiff had em-
barked on board the defendant's ferry-boat at Birkenhead, having
with him two horses, for the carriage of which he had paid the usual
fare. It was alleged that the plaintiff misconducted himself and be-
haved improperly after he came on board the steamboat, and when
the defendant came on board he told the plaintiff" that he would not
carry the horses over, and that he must take them on shore. The
plaintiff refused to do so, and the defendant took the horses from
the plaintiff, who was holding one of them by the bridle, and put
them on shore on the landing-slip. They were driven to the top of the
slip, which was separated by gates from the high road, and turned
loose on the road. They were shortly afterwards seen in the stables
of a hotel at Birkenhead, kept by the defendant's brother. The
plaintiff' remained on board the steamboat, and was conveyed over
the river to Liverpool. On the following day the plaintiff sent to
the hotel for the horses, but the parties in whose possession they
were refused to deliver them up. A message, however, was after-
wards sent to him by the hotel-keeper, to the eff'ect that he might
have the horses on sending for them and paying for their keep ; and
that if he did not send for them and pay for their keep, they would
be sold to pay the expense of it. The plaintiff then brought the pres-
ent action. The horses were subsequently sold by auction. The de-
fence set up at the trial was, that the plaintiff had misconducted him-



is in the assignor at the tjme he makes the assignment, and that title passing to
the assignee, who is innocent of fraud, a demand by the vendor must be made
before an action for its recovery can be brought," National Butchers, etc.,
Bank V. Hubbcll, 117 N. Y. 384 (1889), Peckham, J., p. 398; contra: Farley
V. Lincoln, 51 N. H. 577 (1872). As to the necessity of demand before bring-
ing trover against a sheriff levying upon the goods while in the fraudulent
vendee's possession, see Thompson v. Rose, 16 Conn. 71 : Acker v. Campbell,
23 Wend. 371 (1840) ; Bussing v. Rice, 2 Cush. 48 ( .Mass. 1848), in the two lat-
ter cases it being held that replevin lies without demand.

So any fraudulent scheme or any illegal pressure whereby one induces an-
other to give or deliver such other's property to him, is a conversion without
more; Porell v. Cavanaugh, 69 N. H. 364 (1898), defendant, who had been in-
duced by fraud of one X to part with his property which came into the hands
of the plaintiff, an innocent purchaser for value, induced the latter to return
the property by falsely stating that his sale to X was conditional; Baird v.
Howard, 51 Ohio St. 57 (1894), sale by man helplessly drunk; Dean v. Ross,
178 Mass. Z97 (1901), spiritualistic medium induced widow to give her cer-
tain bonds by pretended messages from deceased husband; Hagar v. Norton,
188 ^lass. 47 (1905) ; and see Corr v. Elder, 9 Pa. Super. Ct. 228 (1899) ; Sum-
mersett v. Jarvis, 3 Brod & Bing. 2 (1822), a farmer gave up his books to a 1
assignee under a void commission of bankruptcy.

Where goods are delivered by mistake, the transferee is liable if. but
cnlv if, he takes, retains, or disposes of it with knowledge of the mistake.
Chapman v. Cole, 12 Gray 141 (Mass. 1858).



I40



FOULDES V. WILLOUGHBY.



self and behaved improperly on board, and that the horses were
sent on shore in order to get rid of the plaintiff, by inducing him to
follow them. The learned judge told the jury that the defendant, by
taking the horses from the plaintiff and turning them out of the
vessel, had been guilty of a conversion, unless they thought the
plaintift"s conduct had justified his removal from the steamboat, and
he had refused to go without his horses ; and that if they thought the
conversion was proved, they might give the plaintiff damages for
the full value of the horses. The jury found a verdict for the plain-
tiff with £40 damages, the value of the horses.

In Easter term last, the rule was obtained calling upon the
plaintiff to show cause why the verdict should not be set aside on
the ground of misdirection, both as to the proof of a conversion, and
also as to the amount of damages ; against which rule

W. H. Watson and Atherton now showed cause. The evidence
showed that which clearly amounted to a conversion, and it was not
affected by the circumstance that the plaintiff had the means after-
wards, if he had chosen, of obtaining the horses again. A wrongful
removal of a chattel, even for a few yards, amounts in law to a con-
version. (Lord Abinger, C. B. According to that argument, every
trespass is a conversion.) If a man takes and rides another per-
son's horse without his consent, however short a distance, it is in
lavv a conversion. (Alderson, B. In that case there is a user of
the horse. Lord Abinger, C. B. In this case the horses were
turned out of the boat by the defendant because the owner refused
to take them out, and not with any view to appropriate them to his
own use, but to get rid of their owner. Alderson, B. If a man
were to remove my carriage a few yards, and then leave it, would
he be guilty of a conversion?) In the notes to Wilhraham v. Snow,
2 Saund. 470, it is said ; "Whenever trespass for taking goods will
lie, that is, where they are taken wrongfully, trover will also lie, for
one mav qualify but not increase a tort ;" citing Bishop v. Montague,
2 Cro. Eliz. 824. (Lord Abinger, C. B. I cannot agree to that posi-
tion, at least to the extent for which it is now used.)
Crompton in support of the rule.

Lord Abinger, C. B. This is a motion to set aside the verdict

on the ground of an alleged misdirection ; and I cannot help thinking

that if the learned judge who tried the cause had referred to the

long and frequent distinctions which have been taken between such

a simple asportation as will support an action of trespass, and

those circumstances which are requisite to establish a conversion, he

would not have so directed the jury. It is a proposition familiar to

all lawvers^that a si mple asportatio n o f a chattel, without any in -

leritldiroFmaking Tny further ""use^^orit 7 although ^^ ^7 j^-^-^^"

Hent Toundationfor an ac tion oTTrespass, is not sTrffrrfenTTo estab-

lish a ^onVersion i had"lTrought-timrTtTe-ma^t€^Jiad been fully

discussed, and this distinction established, by the numerous cases

which have occurred on this subject ; but, according to the argument

put forward by the plaintiff's counsel to-day, a bare asportovit is a

sufficient transaction to support an action of trover. I entirely dis-



FOULDES V. WILLOUGHBY. I4I

sent from this argument ; and therefore I think that the learned
judge was wrong in telling the jury that the simple act of putting
these horses on shore by the defendant amounted to a conversion of
them to his own use. In my opinion, he should have added to his
direction, that it was for them to consider what was the intention of
the defendant in so doing. If the object, and whether rightfully or
wrongfully entertained is immaterial, simply was to induce the
plaintiff to go on shore himself, and the defendant, in furtherance
of that object, did the act in question, it was not exercising over the
horses any right inconsistent with, or adverse to, the rights which
the plaintiff had in them. Suppose, instead of the horses, the de-
fendant had put the plaintiff himself on shore, and on being put on
shore the plaintiff had refused to take the horses with him, and the
defendant had said he would take them to the other side of the
water, and had done so. would that be a conversion? That would
be a much more colorable case of a conversion than the present, be-
cause, by separating the man from his property, it might, with some
appearance of fairness, be said the party was carrying away the
horses without any justifiable reason for so doing. Then, having
conveyed them across the water, and finding neither the owner nor
any one else to receive them, what is he to do with them ? Suppose,
under those circumstances, the defendant lands them, and leaves
them on shore, would that amount to a conversion? The argu^
ment of the plaintiff's counsel in this case must go the length of say-
ing that it would. Then, suppose the reply to be that those cir-
cumstances would amount to a conversion, I ask, at what period
of time did the conversion take place? Suppose the plaintiff' had
immediately followed his horses when they were put on shore, and
resumed possession of them, would there be a conversion of them
in that case? I apprehend, clearly not. It has been argued that the
mere touching and taking them by the bridle would constitute a con-
version, but surely that cannot be: if the plaintiff' had immediately
gone on shore and taken possession of them, there could be no con-
version. Then the question, whether this were conversion or not,
cannot depend on the subsequent conduct of the plaintiff in following
the horses on shore. Would any man say, that if the facts of this
case were, that the plaintiff and defendant had had a controversy
as to whether the horses should remain in the boat, and the defend-
ant had said, "If you will not put them on shore, I will do it for
you," and, in pursuance of that threat, he had taken hold of one of
the horses to go ashore with it, an action of trover could be sustained
against him? There might, perhaps, in such a case, be ground for
maintaining an action of trespass, because the defendant may have
had no right to meddle with the horses at all ; but it is clear that he
did not do so for the purpose of taking them away from the plain-
tiff, or of exercising any right over them, either for himself or
for any other person. The case which has been cited from Strange's
Reports, of Bushel v. Miller, seems fully in point. There the plain-
tiff and defendant, who were porters, had each a stand on the Cus-
tom-house Quay. The plaintiff' placed goods belonging to a third



142 FOULDES V. WILLOUGHBY.

party in such a manner that the defendant could not get to his
chest without removing them, which he accordingly did, and forgot
to replace them, and the goods were subsequently lost. Now sup-
pose trespass to have been brought for that asportation, the defend-
ant, in order to justify the trespass, would plead that he removed the
parcels, as he lawfully might, for the purpose of coming at his
own goods ; and the court there said that whatever ground there
might be for an action of trespass in not putting the package back
in its original place, there was none for trover, inasmuch as the
object of the party removing it was one wholly collateral to any use
of the property, and not at all to disturb the plaintiff's rights in or
dominion over it. Again, suppose a man puts goods on board of a
boat, which the master thinks are too heavy for it, and refuses to
carry them, on the ground that it might be dangerous to his vessel
to do so, and the owner of the goods says, "If you put my goods on
shore, I will go with them," and he does so ; would that amount to a
conversion in the master of the vessel, even assuming his judgment
as to the weight of the goods to be quite erroneous, and that there
really would be no danger whatever in taking them? In order to
constitute a conversion, it is necessary either that the party taking
the goods should intend some use to be made of them, by himself or
by those for whom he acts, or that, owing to his act, the goods are
destroyed or consumed, to the prejudice of the lawful owner. As
an instance of the latter branch of this definition, suppose, in the
present case, the defendant had thrown the horses into the water,
whereby they were drowned, that would have amounted to an actual
conversion ; or as in the case cited in the course of the argument,
of a person throwing a piece of paper into the water ; for, in these
cases, the chattel is changed in quality, or destroyed altogether. But
it has never yet been held that the single act of the removal of a
chattel, independent of any claim over it, either in favor of the
party himself or any one else, amounts to a conversion of the chattel.
In the present case, therefore, the simple removal of these horses by
the defendant, for a purpose wholly unconnected with any the
least denial of the right of the plaintiff to the possession and en-
joyment of them, is no conversion of the horses, and consequently
the rule for a new trial ought to be made absolute.

With respect to the amount of damages, it was altogether a
question for the jury. I am not at all prepared to say, that if the
jury were satisfied that there had been a conversion in this case,
they would be doing wrong in giving damages to the full value of
the horses. I do not at all rest my judgment on that point, but
put it aside entirely. If the judge had told the jury that there was
evidence in the case from whence they might infer that a conver-
sion of these horses had taken place at some time, it would have
been different ; but his telling them that the simple act of putting
them on shore amounted to a conversion. T think was a misdirection,
on which the defendant is entitled to a new trial.

Alderson, B. I am of the same opinion. As to the last point.
it would be a strange thing to disturb the verdict on the ground



FOULDES V. WILLOUGIIBY. 143

that the jury had given as damages the full value of these horses ;
for it appears that tiiey were ultimately sold, and the plaintiff never
regained possession of them. If, therefore, the original act of tak-
ing the horses really amounted to a conversion of them, it would be
a strong proposition for us to say that the plaintiff was not entitled
to recover their full value, as damages for the wrongful act done.
But the mere circumstance which the learned judge in this case put
'lO the jury, as constituting the conversion, does not necessarily
Timount to one. Any asportation of the chattel for the use of the
defendant, or a third person, amounts to a conversion; for this
simple reason, that it is an action inconsistent with the general right
of dominion which the owner of the chattel has in it, who is entitled
to the use of it at all times and in all places. When, therefore, a
man takes that chattel, either for the use of himself or another,
it is a conversion. So, if a man has possession of my chattel, and
refuses to deliver it up, this is an assertion of a right inconsistent
with my general dominion over it, and the use which at all times, and
in all places, I am entitled to make of it, and consequently amounts
to an act of conversion. So the destruction of the chattel is an act
of conversion, for its effect is to deprive me of it altogether. But
the question here is where a man does an act the effect of which is
not for a moment to interfere with my dominion over the chattel,
but, on the contrary, recognizing throughout my title to it, can such
an act as that be said to amount to a conversion ? I think it cannot.
Why did this defendant turn the horses out of his boat? Because
he recognized them as the property of the plaintiff. He may have
been a wrongdoer in putting them ashore ; but how is that incon-
sistent with the general right which the plaintiff has to the use of
the horses ? It clearly is not ; it is a wrongful act done, but only like
any common act of trespass to goods with which the party has no
right to meddle. Scratching the panel of a carriage would be a
trespass ; but it would be a monstrous thing to say that it would be
a ground for an action of trover ; and yet to that extent must the
plaintiff's counsel go if their argument in this case be sound. But
such is not the law ; and the true principle is that stated by Chambre
and Holroyd, JJ., when at the bar, in their argument in the case of
Shipzvick V. Blanchard, 6 T. R. 298, that "in order to maintain trover
the goods must be taken or denied with intent to convert them to the
taker's own use, or to the use of those for who he is acting." This
definition, indeed, requires an addition to be made of it ; namely, that
the destruction of the goods will also amount to a conversion. For
these reasons I think, in the case before us, the question ought
to have been left to the jury to say whether the act done by the de-
fendant of seizing these horses and putting them on shore, was done
with the intention of converting them to his own use. i. e.. with the
intention of impugning, even for a moment, the plaintift*'s general
right of dominion over them. If so, it would be a conversion ; other-
wise not.

RoLFE, B. In every case of trover there must be a taking with the
intent of exercising over the chattel an ownership inconsistent with



144 FOULDES V. WILLOUGHBY.

the real owner's right of possession. Now suppose, instead of ac-
tually removing the horses from the boat, the defendant had waved
his liand, or cracked a whip, and so made the animals jump out of
the boat, would that amount to a conversion ? I do not see how, on
the hypothesis of Mr. Watson, any other answer could be given