Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 25 of 124)
Font size
QR-code for this ebook

where it is alleged the horses were let to be driven; and, third, no
negligence or misconduct of the defendant is shown in the manage-
ment or driving of said horse. We need not consider the ruling on
this motion, as the questions therein presented are also raised in the
further progress of the trial. In the seventh and eighth instructions
given by the court to the jury, they were told, in substance, that if
defendant hired the team, and drove them so immoderately, and
was so negligent in caring for them, that one of them became sick,
and defendant, with knowledge of such sickness, continued to drive
and abuse the horse until it died, and if such treatment was such as
an ordinarily prudent man woidd not give such horse under like
circumstances, and if the contract of hiring was made on Sunday,
they should find for the defendant. Xo complaint is made of these
instructions, and, whether right or wrong, they are to be treated as
the law of the case, so far as the cause of action stated in the first
count is concerned. The case, then, is to be considered, so far as
legal errors are concerned, with reference to the cause of action for
the conversion of the horse.

III. The court gave the jury the following instruction: "(9) If
you find from the evidence that the team was hired or given to de-
fendant only for the purpose of driving from Delhi to ^Manchester,
and that, being so hired, defendant, without the consent of plain-
tiffs, drove some miles away from the line of travel between said
towns, to a place not contemplated by the contract of hire, then such
use of the team would be a conversion of the same by the defendant,
and the plaintiff's might elect to recover the value of any part of
such team and buggy as was not returned to and accepted by them
after knowledge of such conversion ; and plaintiffs would have a
right to recover, if you find such to be the fact, even though the evi-
dence disclosed that the contract of hire by which defendant secured
possession of the property was laid down on Sunday." The instruc-
tion lays down the broad rule that a mere diversion from the line



1 66 DOOLITTLE & SHERMAN V. SHAW.

of travel, or going beyond the point for which the horse was hired,
will, without more, amount to a conversion of the animal, for which
an action will lie. What will amount to a conversion in such cases
is the question we must determine.

In Spooner v. Manchester, 133 Mass. 270, the court defined a
conversion as follows : "Conversion is based upon the idea of an
assumption by the defendant of a right of property, or a right of
dominion over the thing converted, which casts upon him all the
risks of an owner; and it is, therefore, not every wrongful inter-
meddling with, or wrongful asportation, or wrongful detention of,
personal property^ that amounts to a conversion. Acts which them-
selves imply an assertion of title or of a right of dominion over per-
sonal property, such as a sale, letting, or destruction of it, amount
to a conversion, even though the defendant may have honestly mis-
taken his rights; but acts which do not themselves imply an asser-
tion of title, or of a right of dominion over such property, will not
sustain an action of trover unless done with the intention to deprive
the owner of it permanently or temporarily, or unless there has
been a demand for the property, and a neglect or refusal to deliver
it, which are evidence of a conversion." Evans v. Mason, 54 N. H,
98, 5 Atl. Rep. 766. In Story on Bailments (§ 413a), after stating
the rule as to what is a conversion in such cases, it is said: "But,
although this is the general rule, a question may arise how far the
misconduct or negligence or deviation from duty of the hirer will
affect him with responsibility for a loss which would and must have
occurred, even if he had not been guilty of any such misconduct,
negligence, or deviation from duty." He also, in the same connec-
tion, says: "The question, therefore, in the present state of the au-
thorities, must still be deemed open to controversy. Wherever it is
discussed it will deserve consideration, whether there is, or ought
to be, any difference between cases where the misconduct of the
hirer amounts to a technical or an actual conversion of the prop-
erty to his own use, and cases where there is merely some negligence
or omission or violation of duty in regard to it, not conducing the
loss." Schouler, Bailments, page 137, referring to this same matter.
says : "It is not difficult to conceive that the technical misuse might
occur without an actual abuse of the terms of hire, and vvhere it
would be harsh to visit deviation with such disastrous penalties."

We are not willing to give our sanction to the broad, and, when
applied to a case like that at bar, harsh rule of the instruction. It
must be borne in mind that, in almost every case where that strict
rule has been applied, the facts have shown that the hirer, in addi-
tion to departing from the contract line of ti-avel, was guilty of neg-
ligence or of wilful misconduct, or that he injured or destroyed the
property while outside of the limits of the contract of hiring.
Schouler, Bailm., p. 137; Farkas v. Powell, 13 S. E. (Ga.) 200.
In the case last cited the action was for the value of a horse which
had died, and which it was alleged defendant had ridden beyond the
place he had hired him to go, and that by negligence or cruelty the
horse had been so injured as to cause his death. The horse was



DOOLITTLE & SHERMAN V. SIIAW. I67

"lired to ride from Albany to the Whitehead place, in the country,
a distance of five miles, and was to be returned by 1 1 o'clock at
night. When defendant arrived at the Whitehead place he learned
that the person he wished to see was at the Bryant place, three
or four miles farther on, and he rode on to that place. He remained
there two hours and a half, and left about 9:30 P. M. for Albany.
On the return, and between the Whitehead place and Albany, the
horse fell in the road. He got the horse up on his feet, and led
him three miles, when he again fell. After getting him on his feet
again, he put him in a lot nearby, and went into town, and notified
the plaintiff where the horse was, and of his condition. The horse
died. It appeared that, when defendant got the horse to go upon
his journey, he w^as sound and in good condition, and showed no
signs of disease. The defendant showed that he rode the animal
moderately. It was held that there was a technical conversion of
the horse, and, if the horse had been injured while beyond the
point to which he was hired to go, defendant w'ould have been liable,
whether the injury was caused by his own negligence, or by the neg-
ligence of others, or even by accident, unless he was forced to go
beyond that point by reason of circumstances he could not control.
The court said : "But the main question in this case is, would
Powell, after having been guilty of a technical conversion or viola-
tion of his duty, and having returned within the limits of the orig-
inal hiring, and the horses then sustained an injury without other
fault on his part, be liable? That would depend, in our opinion,
upon whether the extra ride of six or eight miles to the Bryant
place and back caused or materially contributed to the accident.
If it did, we think he would be liable to the owner. * * * jf^
however, the extra ride did not cause or materially contribute to
the injury, we do not think Powell w^ould be liable, if guilty of no
other fault." In Harvey v. Epes, 12 Grat. (Va.) 153, the contract
was one for the hire of slaves for a year, to work in a certain
county. They were taken by the hirer, without the owner's con-
sent, to another county and employed in the same kind of work,
and, while there, died. The court, after elaborately discussing the
question and fully considering the authorities, held that the removal
of the slaves to a county other than that for which they were hired
to work in was not of itself a conversion, regardless of whether
their death was caused by such w-rongf ul act or not. It said : "Upon
the w^hole, I am of opinion that, in the case of a bailment for hire
for a certain term, * * * the use of the property by the hirer,
during the term, for a different purpose, or in a different manner,
from that which was intended by the parties, will not amount to a
conversion for which trover will lie, unless the destruction of the
property be thereby occasioned, or at least unless the act be done
with intent to convert the property, and thus to destroy or defeat the
interest of the bailor therein. * * * A bailment upon hire is
not conditional in its nature, any more than any other contract ; and.
in the absence of an express provision to that eft'ect, the bailee will
not, in general, forfeit his estate by a violation of any of the terms



l68 DOOLITTLE & SHERMAN V. SHAW.

of the bailment. * * * If he merely uses the property in a
manner, or for a purpose, not authorized by the contract, and with-
out destroying it, or without intending to injure or impair the re-
versionary interest of the bailor therein, such misuse does not de-
termine the bailment, and, therefore, is not a conversion for which
trover will lie." See, also, 2 Pars, Cont., p. 128. In Cullen v. Lord,
39 Iowa, 302, the action was for the recovery of the value of a horse
loaned to defendant, and which it was averred was killed by
the defendant's overdriving and ill treatment. It was held that
the jury should have been instructed that, in the absence of a con-
tract to the contrary, the law implied an agreement to pay for the
use of the horse. The evidence tended to show that plaintiff gave
defendant certain instructions and directions respecting the time of
starting, and the manner for caring for the horse. An instruction
of the lower court to the effect that, if plaintiff* gave instructions
and directions, and did not afterwards waive them, and defendant
did not follow them, he would be liable, without inquiry as to
whether the injury resulted from a failure to obey the instructions
or from some other cause, was held erroneous as applied to a case
of letting for a reward. While the facts in that case, so far as they
appear, are not like those in the case at bar, still we think there is
a clear recognition of the doctrine that, in cases of letting for re-
ward, a mere violation of the contract, without more, will not fix
a liability as for a conversion. To constitute a conversion in a case
like that at bar, there must be some exercise of dominion over the
thing hired, in repudiation of, or inconsistent with, the owner's
rights. We hold tha t the mere act of_deviating from the lire of
travel whicTTthe hiring covered, or going beyondThie point for wliTctr
^jthe horse was hired, are acts which, in and of themselves, do noi

necessarily impjy an assertion of title or right of dorhmion oveT' —
I 3he~prop erty, inconsistent witli, or in defiance of, the bailor'slhfeFest^
therein, ~~ ■ - ■

As there was nothing to show that the defendant, in_violating_
_the terms of the contract, intended to appropriate the property tem-
porarily or permanently to his own use, or that he did in f act ^
"lappropriate it, or exercise acts of dominion oyer it inconsistent" wfEli '

plaintiff's rights, he should not be held liable for its value from the

mere fact that he drove the horse beyond or outside of the journey
~for which he was hired. Nor do we see that the rule we have"stated
"is fraught with danger in its application to other cases that may
arise. We are not called upon to determine as to whether or not
the defendant would have been liable if, under proper issues and
evidence, it had been shown that the extra driving caused or con-
tributed to the death of the horse, as no such case is presented. As
to the fact that the contract was entered into on Sunday, we do not
think it is at all controlling. The action is not based upon the con-
tract, but upon the theory that defendant converted the property
to his own use. If he did so, he was not acting under the contract,
but independent of it. We discover no error in the eleventh in-
struction. For the reasons given, the case is reversed.



SINGER MAXLFACTLRIXG CO. Z/. KING. 1 69

SECTION 5.
Demand and Refusal.



SINGER MANUFACTURING CO. v. KING.
Supreme Court of Rhode Island, 1884. 14 R. I. Rep. 511.

June 2, 1884. DuRFEE, C. J. This is trover for the conversion
of a sewinj]^ machine belonj^ing to the plaintiff company. The case
w^as tried in the Court of Common Pleas and comes here on excep-
tions. The testimony given at the trial for the plaintiff' went to
shovv' that the machine was demanded of the defendant by direction
of Charles H. Harris, agent for the plaintiff, and that the defendant,
who was agent for the American Sewing Machine Company, though
he had the machine, refused to deliver it until storage was paid
for it or until another machine belonging to the American Sewing
Machine Company which the plaintiff had was returned. The de-
fendant testified that the machine was brought to him by one Con-
ner, an employe of the .American Sewing Machine Company ; that
he was instructed to hold it for storage, and that, though he did
not announce it when the demand was made, the plaintiff" knew that
he was agent for the .American Sewing Machine Company. It
further appeared that the machine had been leased to a ?\Irs. Lvnch
by the plaintiff company; that Company had received it from her,
leaving a machine of the American Company in place of it : that
he had carried it to Harris, and that Harris refused to receive it,
saying that his Company had no machines out which were then
due ; that he then carried it to the American Sewing Alachine Com-
pany and told Harris that he had done it. Harris testified in reply
that he did not see the machine when Conner brought it and that
he had not authorized any one to store it with" the American Com-
pany.

The Court instructed the jury that if the defendant, when de-
mand was made upon him, was the agent of the American Sewing
Machine Company, and was holding the machine under their orders
and not for himself or under his own control, then the defendant
would be not guilty. The plaintiff excepted.

Ordinarily, when one person has the chattel of another, it is
his duty to deliver it to the owner or his agent on demand, and if
he refuses to do so, his refusal is an evidence of a conversion. It
is, however, only prima facie evidence and may be explained.^



'A demand and refusal, made when the defendant has possession of the
property, is concUisive evidence of a conversion, unless rebutted or explained
bv sufficient evidence. PiV/kj v. Fuss. 8 Md. 148 ( 1855) : Magce K.Scolt,9 Cush.
148 (Mass. 1851); irvckoff v. Stezciison. 46 X. J. L. 326 (1884); Irish v.
Cloyes & Moss, 8 Vt. 30 (1836).

A mere letter demanding the poods is not enough, the claimant must be
on the ground ready to remove them, Miller v. Smithy 1 Phila. 173 (Pa. 1851) :



170 SINGER MANUFACTURING CO. V. KING.

Magce V. Scott, 9 Ciish. 148 ; Robinson v. Burleigh, 5 N. H. 225 ;
Dietiis V. Fuss, 8 Md. 148; Green v. Dunn, 3 Camp. 215; Solomons
V. Dazves, i Esp. 83. Thus it is no conversion for the bailee of a
chattel, who has received it in good faith from some person other
than the owner, to refuse to deliver it to the owner making demand
for it until he has had time to satisfy himself in regard to the own-
ership.- Carroll v. Mix, 51 Barb. S. C. 212; Leo v. Bayes, 18 C. B.
599, 607; Sheridan v. The New Quay Company, 4 C. B. (N. S.)
618 ; Coles V. Wright, 4 Taunt. 198. In the case of a servant who
has received the chattel from his master, it has been held that he
ought not to give it up without first consulting his master in regard
to it. Mires v. Solcbay, 2 Mod. 242, 245 ; Alexander v. Southey, 5
B. & A. 247 ; Berry v. Vantries, 12 Serg. & R. 89. But if, after hav-
ing had an opportunity to confer with his master, he relies on his
master's title and absolutely refuses to comply with the demand,
he will be liable for a conversion.^ Lee v. Robinson, 25 L. J. C. P.



Breese v. Bange, 2 E. D. Smith 474 (N. Y. 1854), unless the defendant
falsely denies possession of the goods, Pattee v. Gilinore, 18 N. H. 460 (1846),
or he, in answer to the demand, though at a distance from the goods uncon-
ditionally refuse to give them up, Clark v. Hale, 34 Conn. 398 (1867).

A refusal to give up the goods save upon a condition which the defendant
has no right to impose is a conversion, Jonsson v. Lindstrom, 114 Ind. 152
(1888), defendant, who allowed a wrongdoer to put the plaintiff's house on
his lot, refused to return it until rent due by the wrongdoer was paid; Rich-
mond v. Soportos, 18 N. Y. S. 433 (1892).

^Accord: Zachary v. Pace, 9 Ark. 212 (1848), defendant was an arbi-
trator who had custody of the goods till the dispute as to ownership was de-
cided; Withcrspoon v. Blewett, 47 Miss. 570 (1873), defendant was agister of
the cattle demanded; Pillot v. Wilkinson, 3 H. & C. 345 (1864), the defend-
ant had the custody of the goods as a wharfinger; Hctt v. Boston & M. R.
Co., 69 X. H. 139 (1897), the defendant, a railroad, was sued by a shipper be-
cause its station master refused to deliver freight without consulting his su-
periors as to demurrage claimed upon the cars. Flannerv v. Brewer, 66 I\Iich.
509 (1887); and Robinson v. Burleigh, 5 N. H. 225 (1830), the defendants
held the goods as administrators; Buffington v. Clarke, 15 R. I. 437 (1887), a
brother of a decedent holding property for her estate pending probate of her
will; Mills v. Britton, 64 Conn. 4 (1894), somewhat similar facts; and see
Boiling v. Kirby, 90 Ala. 215 (1890), father in whose house his daughter kept
the sewing machine in dispute; Carroll v. Mix, 51 Barb. 212 (N. Y. 1868),
defendant had the goods for storage.

In Clark v. Chamberlain, 2 M. & W. 78 (1836), an anchor and cable were
detained by a Vice Admiral for salvage improperly claimed for the person
who had brought the anchor ashore.

Where, however, the servant or bailee refuses to deliver without orders
from his master or bailor and takes no steps to consult him, trover will lie,
Wilson v. Anderton., 1 B. & Ad. 450 (1830) ; so where the servant is the man-
ager or locum teneus of the master, whose business is not to take orders but
to direct the business, his refusal is a conversion unless he shows that the
property came into the master's possession before he was employed, Berry v.
Vantries, 12 S. & R. 89 (Pa. 1824).

^ Xot only must the defendant have a good excuse for detaining the goods
demanded but he must assert it as the reason for refusing to deliver them, so
a refusal denying the plaintiff's title, whether under claim of title in the de-
fendant. Boardman v. Sill, 1 Camp. 410n (1808), or in his bailor, Williams v
Smith, 153 Pa. 462 (1893). is a conversion though he had a right to deta'n
them under a lien for storage or otherwise, or vmder a mortgage, Clark v
Rideout, 39 N. H. ?38 (1859), or to refuse delivery until assured of the au-



SPEAR z: ALEXANDER. I7I

249, 18 C. B. 599 ; T Addison on Torts, § 475 ; Greemvay v. fisher,
I Car. & P. 190; Stephens v. Ehvcll, 4 M. & S. 259; Perkins v.
Smith, I Wils. 328; Ga^/^ v. Whittier, 17 N. H. 312. The mere
fact that he refuses for the benefit of his principal will not protect
him. Kimball w Billings, 55 Maine 147.

In the case at bar the defence is that the defendant, acting as
agent of the American Sewing Machine Company, refused to de-
liver the machine in obedience to instructions not to deliver it until
storage was paid for it. The defendant did not refuse for the pur-
pose of consulting his principal, but it would seem that he had re-
ceived his instructions before the demand in anticipation of it. He
was not a mere servant but an agent, and he may have been, for
anything that appears, a general agent. The machine came to him,
not from his master or principal, as in Mires v. Solebay, but from
a fellow employe, and he may have known, indeed the evidence
carries the impression that he did know, all the circumstances in re-
gard to it, and nevertheless cooperated with his principal in with-
holding it from its owner by insisting on a condition which neither
he nor his principal had any right to impose. If such was the fact,
we think he was guilty; and yet, if such was the fact, the jury
might have found him not guilty under the instructions given by
the court which are the ground of the first exception. The first
exception must therefore be sustained. We do not find any error
in the instructions w'hich are the ground of the second exception,
except in so far as they involve a repetition of instructions before
given. The case will be remitted for new trial.

Exceptions sustained.



SPEAR V. ALEXANDER.

District Court of Philadelphia, 1856. 2 Phila. 89, 13 L. Int. 109.

Sharswood, J. This was an action of trover. The defendant
was a constable, and under an execution in his hands he had sold a
piano, and piano stool to the plaintiff, who paid the money on the
spot and received a bill of sale. The constable said to the plaintiff
these are your goods take them away 'T have other business, and
cannot stav." He remained, however, some twenty minutes, leaving



tbority of him making the demand to receive them, Briggs v. Haycock, 63
Cal. 343 (1883)"; lugalls v. Bulklev. 15 111. 224 (1853^ : Holbrook v. Wright,
24 Wend. 169 (N. Y. 1840^ ; Robertson v. Crane. 27 Miss. 362 (1854) : Storey,
J., in Watt V. Potter. 2 Mason 77 (Cir. Ct. U. S. 1820).

It IS a good excuse that the goods have been attached in the defendant's
hands, at least if attached as the goods of his bailor or master. Fletcher v.
Fletcher, 7 N. H. 452 (1835) : Verrall v. Robinson. 2 C. M. & R. 405 (1835) ;
but see contra, Rogers v. Weir. 34 N. Y. 463 (1866). though here the goods
were attached in the bailee's hands as the goods of a third person and the
bailee refused to deliver them tn his bailor.

A demand of a third person claiming adversely to the bailor will not jus-
tifv the bailee in refusing the coods upon his bailor's demand, Atkinson v.
Marshall, 12 L. J. (X. S.j Ex. 117 (1842).



172 SPEAR V. ALEXANDER.

the plaintiff in the house with the goods. After the lapse of some
three-quarters of an hour, the plaintiff and other purchasers went
for a furniture car. When the car came they were enticed out of
the house, and the door locked upon them. The constable was sent
for and came, but he did not force an entrance, and the plaintiff
never got his goods. A demand was made upon the constable the
next day, to which his reply was that the goods were not in his
possession.

It is unnecessary to decide whether the officer was liable for
neglect of duty in not forcing an entrance and taking the goods,
because we are clearly of the opinion that there was no evidence
of conversion and that the nonsuit w-as right.

Remand and refusal are not conversi on but only evidence o f it.
If the refusal is so — qualified as in itself to rebut the presumption
it is of no avail. Where a deed was demanded from the defendant,
w'ho said he would not deliver it up, but that it was then in the hands
of his attorney who had a lien upon it, this refusal w^as held not to
be sufficient evidence of a conversion ; and Lord Ellenborough said
that the defendant would have been guilty of a conversion, if the
deed had been in his powder, but that the intention was not enough.
Smith V; Young, i Camp. 489. The widow and administratrix of
an insolvent, being applied to by his assignees for some papers that
had been in his possession at the time of his decease, answered that
they were in the hands of her attorney, it was held not sufficient
evidence of a conversion to maintain an action of trover. Cavat v.
Hughes, 2 Bingh. X. C. 449. When thereJias be„en no a ctual con-
jvexsion of property, a demand and refusal cannot lay a foundation
for the action of trover, unless at the time of the refusal, the party
has the property demanded in his possession, so that he can comply
"with the demand. Kelsey v. Griswold, 6 Barb. Sup. Ct. 436.

Accord: Anon. 2 Salk. 655 (1704) : Canot v. Hughes, 2 Bing. N. C. 448
('1839) : Robinson v. Hartridge, 13 Fla. 501 (1871) ; Hill v. Belasco. XI 111. App.
194 (1885); Davis v. Buffimi. 51 Maine 160 (1863); Marshall & Michael-
Grain Co. v. Kansas Citv, Ft. S. & M. R. Co., 176 Mo. 480 (1903) : Johnson v.
CouiUard, 4 Allen 446 (Mass. 1862) ; Carr v. Clough, 26 N. H. 280 (1853) ;
Whitney v. Slaiison, 30 Barb. 276 (N. Y. 1859) : Morris v. Thompson, 1 Rich.