Francis H. (Francis Hermann) Bohlen.

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than in the affirmative ; for if the principle be that anything which
controls the position of the chattel while in my possession, will
amount to a change of ownership, I do not see how the effecting of
that change by frightening the animal which constitutes my property,
is distinguishable from any other means adopted for that same pur-
pose. Again, suppose I, seeing a horse in a ploughed field, thought
it had strayed, and under that impression led it back to pasture, it
is clear that an action of trespass would lie against me ; but would
any man say that this amounted to a conversion of the horse to my
own use ? Or suppose a man drives his carriage up into an inn yard,
and the innkeeper refuses to take it and his horses in, but turns them
out into the road, could it be said that he thereby converted them to
his own use? Surely not. The same principle applies to the case
which has been cited, of Bushel V. Miller, where a party was held
to have a right to move certain goods of another person, provided
he put them back again ; his not putting them back may give the
other a right to bring trespass against him, on the ground that his
subsequent neglect made him a trespasser ab initio; but it is clear
that there was no conversion of the chattel. So that we find the
distinction to which I have alluded, between trespass and trover,
continually recognized in law. I quite agree with my Brother
Gurney, that if the learned judge in the present case had not put the
conversion to the jury as founded on the single fact of taking the
horses on shore, but had left it for their consideration on the whole
case as it stood, not only was there evidence of a conversion, but
there was such as would have fully warranted the jury in coming to
the conclusion at which they arrived. The question, however, was
not so left to the jury, and this rule is to set aside the verdict for
misdirection must therefore be made absolute. l

Rule absolute.'^



* Even an intentional act, whose obvious result is the destruction of a chat-
tel, is not a conversion if done to protect the doer's property from destruction,
McKccsport Saw Mill Co. v. Pennsylvania Co.. 122 Fed. 184 (1903). the de-
fendant in order to protect the false work and fender of their bridge dislodged
and in so doing broke up the plaintiff's barge which had slipped its moorings;
or to disencumber their premises from the intrusion of the plaintiff's goods,
Forster v. Juniata Bridge Co., 16 Pa. St. 393 (1851). semhle, a part of a bridge
carried away by a flood lodged on the defendant's island, Gibson, C. J., said, p.
399, that "the defendant after notice given might have disencumbered his land
of it by casting it back into the river, but he could not appropriate it to his
own use," but see, contra, Aschermann v. Philip Best Brewing Co., 45 Wis.
262 (1878), the owner of a premises, upon which plaintiff's goods unlawfully
were, held liable in conversion for his acts necessary for the use of his
premises whereby the goods were destroyed, and see Munford v. Taylor, 2
Mete. 599 (Ky. 1859), where it was held that the false imprisonment of the
plaintiff's runaway slaves, who escaped from the prison and fled the state was
a conversion,^ though the officers in good faith believed them guilty of the
crime for which they were arrested under invalid process.



GUDE CO. V. FARLEY. I45

GUDE CO. V. FARLEY.

Supreme Court of Nezv York, Appellate Division, 1898. 25 N. Y. j^fisc. 502.

Trover for an advcrtisinj^ sign. Appeal from the judgment of
the Municipal Court of the City of New York, borough of Man-
hattan, first district, rendered in favor of the defendant upon a
trial had before the court without a jury.

The facts as stated by Gicgerich, J., were substantially as fol-
lows : The defendant's grantor had leased the premises to one
McAIenamey, for one year from May ist, 1897, with the right of
renewal for four years, the lessee covenanting not to underlet any
part of the premises except the second or third floors. The lessee,
without the consent of the lessor, granted to the plaintiff the use
of the roof with the right to erect and maintain advertising* signs
thereon for five years from January ist, 1898. The plaintiffs on
December 30th, 1897, erected a sign upon the roof ten feet long
and twenty-five feet wide. The defendant, on December 31st, 1897,
purchased the fee subject to the lease and notified botii the lessee
and the plaintiff" to remove the sign. They having refused, the de-
fendant had the sign removed and stored in his cellar and notified
the plaintiff that it was at its disposal,

GiEGERicn^ J. 'Tt appears from the evidence that McMena-
mey occupied only the first or stone floor of the premises thus de-
mised, which were twenty-five feet square and three stories high.
According to a stipulation entered into upon the trial, it also ap-
pears that the defendant's grantor collected no rent from the ten-
ant (McMenamey) at any time after the erection of the sign and
that no rent became due to him after that date.

The remarks of the trial justice wherein he concludes that the
facts as proved did not constitute a conversion, are fully concurred
in by me. Tf a man, who has no right to meddle with goods at all,
removes them from one place to another, an action may be main-
tained against him for a trespass ; but he is not guilty of a conver-
sion of them, unless he removed the goods for the purpose of tak-
ing them away from the plaintiff', or of exercising some dominion
or control over them for the benefit of himself or some other per-
son.' 2 Addison on Torts (6th ed.), § 519, p. 626. Tt has never
yet been held,' observes the learned author, ' that_ jji& - ^tngie - a€t^f
rejQio ving a chattel, indep endent of any claim over it, either in
fav-or-ofTTie person himself or any one else, amounts to"~a conver^^
sion.' Id. 627."

"In Houghton v. Butler, 4 T. R. 364, where a gate had been
wrongfully erected by the plaintiff', so as to obstruct the defend-
ant's right of way, and the latter took it down and put it in a con-
venient place for the use of the plaintiff, it was held that this did
not amount to a conversion."

"The foregoing rules were distinctly recognized and applied in
the case of Eldridge v. Adams, 54 Barb. (N. Y.) 417. There the
plaintiff' let to the defendant a buggy, which he had hired for a year

10 — Boklen's Cases. Vol. T.



146 GUDE CO. V. FARLEY.

from one Jenkins. The wagon was injured while in use by one
Hall, and the plaintiff, after its return to him, sent it to the shop of
a man named Francisco for repair. Hall afterwards promised the
plaintiff that he would pay for such repairs, and the defendant be-
came his surety therefor. Subsequently the defendant and Hall had
the wagon removed to another shop for repair, and, before suit was
brought, returned it to the custody of the plaintiff. A verdict was
directed for the plaintiff subject to the opinion of the court at Gen-
eral Term, but the latter tribunal held that the defendant was not
liable, and, accordingly, directed judgment in his favor. Held by
the court (per James, J., p. 423) : 'the defendant in this case was
guilty only of a mere asportation of the buggy; he did not inter-
fere with the plaintiff's dominion over the buggy ; his title was rec-
ognized and acknowledged throughout ; it was not taken or de-
tained with the intent to convert it to the defendant's use, or the
use of any one else ; he assumed no ownership over it ; it was not
injured while in his possession. In fact there was no element in
the proof on which a conversion could be predicated.' "

The defendants in Farnszvorth v. Lozuery, 134 Mass. 512,
wrongfully removed certain glass plates from a case to which they
claimed title, and of which they took possession, and left said plates
in the custody of the person who had theretofore held the case.
Held, insufficient to maintain an action for conversion of the plates,
even if plaintiffs were ignorant of their whereabouts. The opinion
there is by Field, J., who thus sums up the evidence : "It is con-
tended that this wrongful removal of the plates from the case was
a conversion, because it is an exercise of dominion over them in-
consistent with the rights of the plaintiffs. But the dominion which
the defendants exercised in removing the plates from the case was
exercised, not by virtue of any claim of property in the plates, or
of any right of possession or control over the plates, but by virtue
of a claim of a right of property in the case with which the plates
were connected, and there is no evidence recited which would have
warranted the jury in finding that the defendants removed the
plates from the case for any other purpose than that of separating
the property of the plaintiffs from the case which the defendants
claimed to own, that they might take and carry away only the prop-
erty they claimed. Such a wrongful intermeddling with plates we
think, does not amount to a conversion. There was no intent to
deprive the plaintiffs of their property in, or of their rights of pos-
session over, the plates, and no actual deprivation. The removal
was incidental to the taking and carrying away of the case, and the
plates continued in the custody of the person who, so far as appears,
was in possession of the room in which the case was placed, and
had the custody of the case. The evidence of a conversion is no
stronger than if it proved that a stranger without right had taken
the plates from the case and left both in the room. This would be
a trespass, but not a conversion." (p. 519.)

The foregoing principles were also applied in Shea v. Inhabi-
tants of Milford, 145 Mass, 525, where the town, one of the de-



GUDE CO. 7'. FARLEY. I47

fendants, contracted with the firm of Mead, Mason & Company, for
the construction of a granite stone building, and the latter sublet the
stone work thereon to the plaintiff. Before the structure was com-
pleted the plaintiff was requested by both the contractors and the
town's agent to remove, to another part of the land, certain chattels
which had been used by him in the performance of his work, and
upon his refusal, the defendants, without unnecessary damage, re-
moved the same to another part of the land. It was there held by
W. Allen, J., that even had the plaintiff an unrevoked license to
have the chattels on the land, an action for conversion could not be
maintained. "The evidence," he says, "negatived a conversion of
the property by the defendants, and showed that they claimed no
title to it, assumed no dominion over it, and did nothing in deroga-
tion of the plaintiff's title to it, and that all that w^as claimed by the
defendants was the right to remove the goods from one place to
another on their land. All that was done was in assertion of their
right in the land, and in recognition of the plaintiff's right of prop-
erty in the chattels. If the plaintiff had the right to occupy the
land, which he claimed, the act of the defendants was wrongful,
and they would be liable to the plaintiff for damages for breach of
contract, or for the trespass, but not for the value of the property
converted to their own use."

I think the principle is fairly deducible from these authorities
that the rnere rem.Q Yal-of-»-ehaU£i from one place to annfhpr ^in the

absence of any c b"'*^ '^^ ownpr^<VrtYrrvr'T^Tl° - ^^-prrigp^ft^ - ;^^

thereover, docs not amount to a conversion.

It might at first glance be claimed that the foregoing views are
at variance with the principles of the decision in Roe v. Campbell,
40 Hun (N. Y.) 50, but there the facts were entirely different. The
plaintiff had sold a buggy conditionally to one Broderick, retaining
in himself the title thereto until a note given for the purchase-price
should be met. Before the note matured, however, Broderick sold
the wagon to the defendant, and the plaintiff brought a suit for
conversion. The distinction becomes apparent from a reading of
the following portion of the opinion, delivered by Smith, P. J., con-
tained at page 52: "If the defendant, on being notified of the plain-
tiff's title and demand of possession, had simply stored the wagon
in his barn at Wolcott, where it was at the time of the demand,
while he w^as availing himself of the plaintiff's consent to take time
to consider whether he w^ould comply with the demand, he would
not have been liable."

In the case at bar the defendant seems to have acted upon the
theory that the agreement between plaintiff and the lessee operated
as a subletting, rather than a license, thus causing the prohibitive
clause against subletting contained in the lessor's lease to become
operative, and, by virtue of the deed, vesting in the defendant title
to the sign, upon its annexation, as part of the freehold, and that,
therefore, the plaintiff' had neither property, general or special, nor
the immediate right of possession therein or thereto. W'hether or
not this position is well taken need not be considered in view of the



148 MC GONIGLE Z'. BELLEISLE CO.

conclusion above reached anent the defendant's freedom from lia-
bihty for his acts. The latter having at the very outset requested
the plaintiff and AIcMenamey to remove the sign from the roof,
and they having failed to comply therewith, its removal was obvi-
ously not made for the purpose of depriving the plaintiff of owner-
ship therein, but merely to change its position from a part of the
building where defendant claimed it had no right to be. Under
these circumstances, and in view of the fact that the defendant ap-
prised plaintiff' that the sign was subject to its order, of which the
latter did not avail itself, it is clear, upon principle and authority,
that the defendant's acts in the premises did not amount to a con-
version. Such notice by the defendant to the plaintiff was, in my
opinion, a positive recognition of the latter's ownership of the_ sign
and inconsistent with the idea of the former's exercising dominion
over it.

For these reasons, to my mind, the judgment should be af-

Srmed,

Beekman, p. J., concurs ; Gildersleeve, J., not sitting.
Judgment affirmed, with costs.

Accord: Mattice v. Brinkman, 74 Mich. 705 (1889), plaintiff's goods were
removed from one part of a building to another to enable the defendant to
take possession; and see Weakley v. Evans, 46 S. W. 1070 (Tenn. 1897), sem-
ble; Sparks v. Purdy, 11 Mo. 219 (1847), plaintiff, collector of St. Louis ap-
pointed by the court, was allowed to use a room in the Court House, having
been removed from his office and another appointed in his stead, his goods
were immediately taken from his room and placed on a portico outside it,
and pointed out to the plaintiff as his. The plaintiff not removing them, they
were afterwards placed in an old, ill fastened room, by some one unknown,
whence they were stolen. It was held that while the plaintiff might recover
trespass, trover would not lie, Scott, J., saying : "The bare removing of one's
chattels from one spot to another, without denying his ownership, but on the
contrarv acknowledging it, can not be a conversion." Temporary custody of
the plaintiff's property for the purpose of taking an inventory of it as the
plaintiff's property was held, in Jordan v. Greer, 5 Sneed 165 (Tenn. 1857),
not to be a conversion of it.



McGONIGLE v. BELLEISLE CO.
Supreme Judicial Court of Massachusetts, 1904. 186 Mass. 310.

Lathrop, J. This is an action for tort in three counts. The
first count is for breaking and entering the plaintiffs' close, the sec-
ond for the conversion of money and goods, and the third for the use
of excessive force in removing the plaintiffs. The jury returned a
verdict for the defendant on the first count, being so directed by the
presiding judge, and for the plaintiffs on the last two counts; and
the case is before us on the defendant's exceptions.

The facts in the case may be briefly stated as follows: The
plaintiffs were tenants at will of one Marston. On February 24,
1903, Marston executed a lease to the defendant for the term of
eighteen months from March ist, 1903. On March loth, the defend-
ant gave the plaintiffs notice in writing that it had taken a lease of



MC GONIGLE V. EELLEISLE CO. I49

the premises and requested the plaintiffs to quit the premises, as it
desired to occupy the same for its own use. An action by summary
process was brought by the defendant to recover possession of the
premises. On March 27th, the agents and servants of the defend-
ant, by its direction went to the premises occupied by the plaintiffs,
and immediately after gaining possession removed the plaintiffs'
goods to a storehouse. On the next day the defendant gave notice
to the plaintiffs where the goods were, and offered to remove them
to any place the plaintiffs might desire, without any expense to
them. The evidence was conflicting as to whether there was any
opposition to the removal of the goods after possession was ob-
tained ; and there was evidence tending to show that the plaintiffs
resisted the attempt of the defendant to enter the premises and to
obtain possession, and requested the return of a trunk alleged to
contain money after it had been placed on a w'agon for removal, but
were driven away.

The remaining exception relates to the refusal of the judge to
give an instruction requested and to the instructions given. The
request -was as follows: "If the defendant had the right to remove
the goods of the plaintiff's and to obtain possession of the premises
wherein they were, the defendant was justified in taking reasonable
precaution to prevent the loss or damage to the goods or effects of
the plaintiffs by putting them in a suitable place for storage at the
expense of the defendant, subject to the order of the plaintiffs, giv-
ing them reasonable notice that the same were stored for safe keep-
ing, subject to the order of the plaintiffs."

The instructions given were as follows: "If you are satisfied
from the evidence that the servants or agents of the defendant took
goods, and held those goods a moment longer than was reasonable
and necessary to remove them from the premises against the wall of
the plaintiffs, then the plaintiffs can recover the value of the goods.
If you think in all the defendant did in taking the goods of the plain-
tiffs to the storehouse, it was not acting in opposition to the will of
the plaintiff's, did not take control of the goods against the will of
the owners but was acting together peaceably with the plaintiffs and
set up no claim against the will of the owners, the defendant is not
liable. But if you think that the defendant undertook to remove
the goods beyond the premises to the storehouse, if you are satisfied
from that time, or at l^iat time, that the plaintiffs expressed a wish
against that, or sought to retain to themselves the possession of the
goods, then the act of the defendant is an act of ownership in oppo-
sition to the wishes of the plaintiff's and the defendant is responsible
for the value of such goods. If you think that there was such a
control and you think that any property was lost afterwards, al-
though it was taken by somebody not a servant of the defendant, the
defendant is responsible. All the defendant had a legal right to do
with 'the goods was to take them and remove them from the prem-
ises ; it could set them down in the street, set them down anywhere.
From the moment they were off the premises, the right which the
law gave the defendant to take possession of the goods was at an



150 GURLEY Z'. ARMSTEAD.

end. If, after that time, it exercised any control over the goods in
opposition to the will of the plaintiffs, they were responsible, and
they were responsible from that moment for the value of all the
goods which they so took."

We are of opinion that on the evidence in the case the instruc-
tion requested was stated too broadly and the rulings were right.
The defendant had a right to put the goods off the premises. Clark
V. Keliher, 107 Mass. 406. But it had no right to exercise control
or dominion over them beyond this, without the assent of the plain-
tiffs express or implied. "Conversion may be shown by the exer-
cise of control over the property, inconsistent with the right of the
owner, and by excluding him from the possession or depriving him
of it." Allen, J., in Scollard v. Brooks, 170 Mass. 445, 448.

In the case before us there was evidence that the plaintiffs were
present, and, if so, they could have taken care of their own goods.
There was also evidence of a refusal by the defendant's agents and
servants to deliver up a trunk said to contain money. The case dif-
fers from Lash v. Ames, lyi Mass. 487, in several respects. In
that case the house was full of old building materials, which had to
be removed from the building and could not be placed in the street
without becoming a public nuisance. It was necessary that they
be moved away, and the owner of the land offered to take them
wherever the tenant wished. The tenant would give no directions.
In the case before us, the taking away and storing were without con-
sulting the plaintiffs.

The order must be

Exceptions overruled.

Accord: Forsdick v. Collins, 1 Starkie 138 (1816) ; Electric Power Com-
pany V. New York, 36 App. Div. (N. Y.) 383 (1899), the defendant City
caused wires, unlawfully maintained by plaintiff, upon housetops and chimneys,
to be cut down and removed to and stored in the Corporation Yard ; Electric
Power Co. v. Metropolitan Telephone & Telegraph Co., 75 Hun 68 (1894),
affirmed 148 N. Y. 746, here, however, the goods were carried away and do
not appear to have been stored for the plaintiff's use.



GURLEY V. ARMSTEAD.

Supreme Judicial Court of Massachusetts, 1889. 100 Mass. 267.

Devens, J. The defendant, who was a job teamster, removed
the goods alleged to have been by him converted from a room in
the dwelling-house of one Whittier to the store of one Davis, and
there delivered them to Whittier, by whose direction he had acted.
Although the goods were in the house of Whittier, they were in a
room hired by the plaintiff from him. The contract between them
was one for rent, and not for storage, Whittier reserving no control
over the room. It was, however, neither locked nor fasteneti, al-
though no goods were in it except those of the plaintiff. In all that
he did the defendant acted in good faith, without any intention of
depriving the rightful owner of her property, and in ignorance of



GURLEY V. ARMSTEAD. I5I

the fact that the plaintiff was such owner, neither asserting title in
himself nor denying title to any other, nor exercising any act of
ownership except by the removal above stated.

The legal possession of the goods was, under these circum-
stances, undoubtedly in the plaintiff, and as they were in the room
hired by her, the actual possession was also hers. The apparent
control of them was, however, in W'hittier, as they were in his
house, and he had further the present capacity to take actual physical
possession, as the room in which they were was neither locked nor
fastened.

It is conceded that whoever receives goods from one in actual,
tThjinjigh ille gnl, p n■:;'^p<;sinn thrronf, and.rpstnrp'; flip gnnrls. trt sU€h -
person, is not liable for a conversion by reason of having transported
them. Strickland v. Barrett, 20 Pick. 415. Leonard \^ Tidd, 3 IMetc.
G} And this would be so apparently, even if the goods thus received
were restored to the wrongful possessor, after notice of the claim
of the true owner. Lor'mg v. Mulcahy, 3 Allen 575. Metcalf v.
McLaughlin, 122 Mass. 84.^

Upon the precise question raised, we have found no direct au-



"• Accord: Frome v. Dennis, 45 N. J. L. 515 (1883), the plaintiff had left
his plow on the farm of C, until he should come and take it away. The farm,
with the plow upon it, passed into the possession of H, who lent it to the de-
fendant, who used it for three days and returned it to H, whose property he
believed it to be; it was held that "he surrendered it to the possessor from
whom he had received it, without any intention of enlarging or changing his
title, without any reference to anybody's title * * * neither in the use nor
in the surrender by the defendant does there appear any repudiation of the
owner's right or any exercise of dominion inconsistent with such right. His
acts may have constituted a trespass but not a conversion," per Dixon, J., p.
519.

Where, however, the bailee does more than restore the goods bailed to
the mere possession of the bailor, as where a warehouseman received mort-
gaged cotton for storage and gave a warehouse receipt therefor, his delivery