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only a bona fide purchaser without notice is protected from the effects of a conversion in purchasing in such case.
3527. The taking need not be actual; it is equally a conversion when it is constructive; as, when a party assumes to dispose of, or exercise a dominion over, personal property, to the exclusion and defiance of the plaintiff's right ; 59 for example, the act of unlawfully levying upon and selling stills, without taking actual possession, will amount to a conversion on the part of a constable; or the act of unlawfully distraining on the coals of plaintiff
, in the coal-house of another man, and selling them without removing them, will have the same effect ; 61 and if a person find a raft of timber on a sand bar in a navigable river, high and dry, and take possession of it, assume to dispose of it, hire a person to assist him in removing a part, and sell that person his interest in the remainder, reserying to himself the portion removed, it is a conversion of the whole.6
3528. There are many cases where the taking of the property of another is justifiable or excusable, and then the act of taking alone will not be a conversion; as, the throwing of goods into the sea by the master to save the ship.
Though the tortious act may have been a conversion, yet if, with a full knowledge of the circumstances, the owner of the property ratifies the act, or in any way becomes a party to the tort, he thereby abandons all right to bring an action of trover.63
The plaintiff loses his right of action if he takes a bond to pay for the chattel upon a final determination of property, and has only his remedy on the bond 64
3529. As in the case of wrongful taking, a wrongful assumption of the property and the right of disposing of the goods may be a conversion in itself, and render a demand unnecessary. Thus, if a mortgagor of personal property, or any one claiming under him, sell the entire property as owner, in exclusion of the rights of the mortgagee, such a sale is a conversion, and the mortgagee may maintain trover ; 66 or where a carrier by mistake delivered goods to a wrong person, it was held that trover might be supported, though it would have been otherwise had they been lost by accident.67
The misuse of a personal thing delivered lawfully to the defendant is a conversion which will enable the owner immediately to maintain trover; where a hired slave was put to an employment to which the bailee had no right to put him, and he was lost, this was considered such a wrongful conversion by the bailee as rendered him liable to this action ; 69 and driving a hired horse a greater distance than is agreed, or in a different direction, will be considered a
58 Gage v. Epperson, 2 Head, Tenn. 669; Wooster v. Sherwood, 25 N. Y. 278.
59 Bristol v. Burt, 7 Johns. N. Y. 254; Murray v. Burling, 10 Johns. N. Y. 172; Reynolds v. Shuler, 5 Cow. N. Y. 323; Webber v. Davis, 44 Me. 147; Gilman v. Hill, 36 N. H. 311. 60 Burke v. Baxter, 3 Mo. 207.
Reynolds v. Shuler, 5 Cow. N. Y. 323.
Gentry v. Madden, 3 Ark. 127. 63 Hawes v. Parkman, 20 Pick. Mass. 90. 64 Briggs Iron Co. v. North Adams Iron Co., 12 Cush. Mass. 114. 65 Maguyer v. Hawthorn, 2 Harr. Del. 71; Murray v. Burling, 10 Johns. N. Y. 172; Liptrot v. Holmes, 1 Ga. 381 ; Powell v. Olds, 9 Ala. n. s. 861; Ainsworth v. Partillo, 13 Ala. N. S. 460; Ripley v. Dolbier, 18 Me. 382; Jacoby v. Laussat, 6 Serg. & R. Penn. 305; Adams v. Goddard, 48 Me. 212; Farrand v. Hurlbut, 7 Minn. 477; Morton v. Gloster, 46 Me. 520.
66 White v. Phelps, 12 N. H. 382. 67 Youl v. Harbottle, Peake, 49; see Bullard v. Young, 4 Ala. 46. 68 Ripley v. Dolbier, 18 Me. 382. & Spencer v. Pilcher, 8 Leigh, Va. 565; see Horsely v. Branch, 1 Humphr. Tenn. 199.
conversion. These decisions seem correct upon principle, because by misusing such property the defendant assumes a right over it inconsistent with the general rights of the owner, and therefore converts the owner's property, to that extent at least.
In the case of mixture or intermingling of goods, a demand must be made and a refusal to deliver them, or the plaintiff must fail. The reason assigned for this is that, prima facie, all the goods belong to the same person.
But unless there has been some lawful assumption of property, trover cannot in general be maintained for a mere non-feasance ; 72 and, therefore, if a bailee by negligence lose goods intrusted to him, the proper remedy is assumpsit or case.
If the bailee deliver to the wrong person, he is liable in trover. 7 Where the defendant takes the chattel by assignment from one who has no title, the owner may maintain trover; 75 but the action cannot be maintained unless the defendant has assumed dominion over the chattel after notice of the plaintiff's title.76 But where the defendant makes no claim of title, but receives the chattel from a wrongful holder, as, for example, from a thief as a mere depository, it is not a conversion if he redeliver it to the thief, though he knows it to be stolen, the owner not having demanded it."
3530. Hitherto we have been considering those acts of the wrong-doers which amount to a conversion of the property without any demand being made of them, or any refusal on their part to deliver it to its owner. The unlawful detention of such property after a demand made by the owner or his agent of the wrong-doer to deliver such property will be the next subject. In its examination it will be proper to inquire what is a wrongful detention and what is a demand and refusal.
3531. By a wrongful detention of goods is meant the act of a person who has the goods of another, whether his possession be wrongful or otherwise, and holds them from the owner without lawful authority; such a wrongful detention of goods amounts to a conversion. Thus, where the possession is unlawful; as, where the wrong-doer has taken the goods of another unlawfully and appropriated them to his own use, this is a wrongful detention; or, if the possession is legal, as where a party who had a particular right to the goods for a time, after the expiration of such time refuses to return them upon proper demand to the owner, this is a wrongful detention, which is evidence of a conversion. But before the holder or possessor of the goods can be put in the wrong by making a demand of him to deliver them, care must be taken that his particular right has expired or been extinguished; a demand of a horse from a hirer before the time for which he had been hired has expired will not make him guilty of a conversion; and where the possessor has a lien upon the goods for a debt due to him, the amount must be paid or tendered to him before a demand, and refusal will create a wrongful detention.79 When the possessor refuses to deliver
70 Whelock v. Wheelwright, 5 Mass. 104; Homer v. Thwing, 3 Pick. Mass. 492; see Hart v. Skinner, 16 Vt. 138; Graves v. Smith, 14 Wisc. 5; Haas v. Damon, 9 Iowa, 589; Crocker v. Gullifer, 44 Me. 491.
11 Bond v. Ward, 7 Mass. 123, 127; see Wengate v. Smith, 20 Me. 287; Cutter v. Fanning, 2 Iowa, 580.
72 McCombie v. Davies, 6 East, 540. 73 Wilbraham v. Snow, 2 Saund, 47, c. 74 Alabama R. R. v. Kidd, 35 Ala. N. s. 209. 75 Courtis v. Cane, 32 Vt. 232; Deering v. Austin, 34 Vt. 330; Rawson v. Tuel, 47 Me 506; Carpenter v. Hale, 8 Gray, Mass. 157 ; Gilmoré v. Newton, 9 All. Mass. 170.
76 Parker v. Middlebrook, 24 Conn. 207; Burnside v. Twitchell, 43 N. H. 390.
the goods, not on account of his lien, but on other grounds, he is estopped from setting up his lien as a defence for a wrongful detention.
3532. In general, a demand is a request by an individual having a right to another to do a particular thing. Such demands may be express or implied. In cases where the taking of goods was lawful, in order to make their subsequent detention illegal it is necessary to prove some assumption of right adverse to the owner's claim, before trover can be supported for their recovery. When the conversion is direct, as, by an illegal taking, or a wrongful assumption of property, or a misuse of the chattel, we have seen the conversion is complete without a demand; but to maintain trover for an indirect conversion a demand is in general indispensable, because the defendant being lawfully in possession of the goods, there is no conversion before he assumes a property in them; a refusal to deliver them to the owner, therefore, shows on his part in fact an assumption of property in the goods and is evidence of the prior conversion. The most usual way is to make an express demand by a person having a lawful right so to do upon the person who holds such goods to deliver them to the owner; this is absolutely necessary when the chattels have not been illegally taken away, or there has not been a wrongful assumption of right to the goods, and in all cases it is advisable. To render the defendant liable there must be a demand in proper form; it must be made by one lawfully authorized; upon a person who has the goods in his possession ; there must be a refusal ; and the demand and refusal must take place before the right of action accrues.
3533. When the demand is to be made, it ought to be in such form as will leave no reasonable doubt upon the mind of the person on whom it is made as to what is demanded. The demand may be oral or in writing, and if it be made in both ways, and one is valid and the other defective, the demand will be sufficient. In order to secure sufficient evidence of the demand, it is better to make it in writing; such an instrument should give a formal notice of the owner's right of property and possession, and make a formal demand of delivery of such possession to the owner; it should particularly describe the articles claimed, for if there is a mistake in this respect, the plaintiff may be defeated in his action; as, where the plaintiff demanded “fixtures" alone, and the goods sued for were fixtures and also other goods, the demand was held insufficient except as to the fixtures. The demand must also be an absolute demand, for one which is qualified is insufficient; thus, where the owner of a gun delivered it to Peter for a particular purpose and Peter wrongfully delivered it to Paul, from whom it got into the defendant's possession, Peter gave notice that the gun was his and added, “I hereby demand the same of you, and require you to deliver it up in the same plight it was when it was delivered to you.” Defendant said, in answer, that the gun had burst, and that he would rather pay ten times the value than repair it; it was held that such demand and refusal did not amount to a conversion.s
So a demand in these words, “I shall have to take them away from you, if I cannot get my money any other way," is not sufficient. 84
3534. The demand may be made by the owner himself, or by his agent duly authorized. As the possessor is entitled to perfect security against another demand, he has a right to have sufficient evidence of the agent's authority when the demand is made by him; and if, on the demand being made by one who
80 Wilton v. Girdlestone, 5 Barnew. & Ald. 587; Wilbraham v. Snow, 2 Saund. 47, e. 81 Smith v. Young, 1 Campb. 440. 82 Colegrave v. Dios Santos, 2 Barnew. & C. 76. 83 Rushworth v. Taylor, Q. B. 21, Law J. Rep. 80. 84 Monnot v. Ibert, 33 Barb. N. Y. 24.
claims to act as agent, the party refuses, bona fide, to deliver the property, on the ground that he is not satisfied as to the agent's authority, the demand will be insufficient. For this reason, as well as because a written demand can be better proved, it is better to make the demand in writing, and authorize the party in possession to deliver the goods to the agent.
As no one has a right to make a demand except the owner or one authorized by him, it follows that the demand must be made by or on behalf of the owner entitled to the goods at the time of the demand made; if, therefore, the bailor sell the goods during the time of bailment, the purchaser, and not the bailor, is the party, after the sale, to demand the goods of the bailee, and, on refusal, to bring trover.
When two persons are jointly entitled to the possession of the chattel, a demand of one is not sufficient without the authority of the other; as, if two persons, jointly interested in the chattel, deposit it with the defendant, one cannot demand the possession of it alone; but unless the bailee receive it on the joint account, a demand by the party depositing it is sufficient, notwithstanding any agreement between such person and another, unknown to the bailee, that the latter should hold it on joint account; and the reason appears to be that the bailee was not answerable to such unknown person, under such circumstances.
3535. The demand ought to be made, if possible, of the person who holds the goods in his own right personally ; but when that cannot be done, then a notice of the ownership of the goods, and a demand to deliver them, should be delivered at the party's house in writing ; 87 but it may be doubted whether this would be sufficient, unless followed by an absolute and general refusal to de liver up the goods; particularly where there is no obligation on the party to incur the trouble or expense of removing, or carrying, or sending the goods from his house to that of the claimant, as where he had found them.88
It is immaterial whether the person of whom the goods are demanded has them in his actual possession or not if they are under his control; as, if they are in the hands of his servants, and he has a controlling power over them, the demand will be sufficient; if, on the other hand, the demand is made of a servant, who refuses to deliver them, in consequence of the commands of his mas
the conversion will be that of the latter; as, where the agent of the state prison refused, by the direction and command of one of the inspectors, to deliver the goods to the plaintiff, the conversion was held to be that of the inspector, and trover might be maintained against him.89
3536. To be evidence of a conversion, the refusal must be absolute and unqualified; when the refusal to deliver property is absolute, unconditional, and unqualified, it is equivalent to a conversion ; 90° but the qualifications and conditions must be reasonable, and founded in fact, or, at least, appear so at the time; for example, when a party bona fide claims a lien, or refuses to deliver them, not being satisfied, for just reasons, that the claimant is the owner, or has authority to receive them," or the bailor asks time for a just cause, or the refusal
may be considered only as the result of a reasonable hesitation, in a doubt
86 Mills v. Ball, 2 Bos. & P. 464, note a; see West v. Tupper, 1 Bail. So. C. 193; Watt v. Potter, 2 Mas. C. C. 77; but where there is no request to see the authority, and the refusal to deliver the property turns upon other and distinct grounds, the demand will be good. 2 Mas. C. C. 77. See Beckley v. Howard, 2 Brev. So. C. 94; Spence v. Mitchell, 9 Ala. N. S. 744. 86 May v. Harvey, 13 East, 197.
87 Logan v. Houlditch, 1 Esp. 22. 88 Gibbs v. Stead, 8 Barnew. & C. 528. 89 Shotwell v. Few, 7 Johns. N. Y, 302. 90 Dent v. Chiles, 9 Ala. 383. 91 Mills v. Ball, 2 Bos. & P. 464; Clarke v. Chamberlain, 2 Mees. & W. Exch. 78. 92 Dowd v. Wadsworth, 2 Dev. No. C. 130. Vol. II.-2 Z
ful matter ; 43 in these cases it will, in general, be left to the jury to decide whether the qualifications or conditions of the refusal were reasonable. 94 But a qualified refusal to deliver goods, on the ground that the defendant had received a notice of a demand from a third party, is evidence of a conversion; for the setting up the jus tertii, or keeping the goods to maintain the title of a third party, is to deprive the owner of his goods and denying his title, and, therefore, it is a conversion.95
3537. The refusal is generally express, but it may be implied. When it is the duty of the defendant to return the chattel to the rightful owner, as, where he borrowed a horse from the plaintiff, and agreed to return him, a request in writing, left at his house in the presence of one of his family, to return the horse, will be considered as a sufficient demand, and his neglect to return him within a reasonable time thereafter will be evidence of a refusal and of a conversion.96
The refusal should be made by a principal or by his authority; a refusal by an agent is not evidence of a conversion by the principal, unless the agent had a special authority to refuse," or unless, from circumstances, it can be presumed such authority had been given, or the matter was within the scope of the agent's authority.98
3538. A refusal may be justified or excused, and then it will not be a conversion; as, where the property has been attached by the creditor of the owner before the demand, a refusal to deliver it would be justified ;99 but such an attachment after a refusal, and a subsequent sale to pay the debt of the plaintiff, would be no justification, although it might be a mitigation of the damages, because, at the time of the refusal, the conversion was complete. 190 The refusal may be excused where the party had it not in his power to deliver the property; as, where a party said he would not deliver up the deed, because it was in the hands of his attorney, who had a lien upon it.101
3539. As to its effects, the refusal is presumptive evidence of a conversion, which may be rebutted.162 It may be shown that the goods were not in the power of the party,103 or that they were delivered to the plaintiff or his agent before the demand and refusal ; or that the defendant has a lien unsatisfied; or that the person who demanded did not show any authority from the plaintiff when required; or, as in the case of a common carrier, that the goods were lost, and therefore there was no conversion ; 204 or that the goods had been attached by lawful process; as, the property of the plaintiff in the hands of the defendant.
When one ground for the refusal is given, the defendant can take advantage of no other; as, where the defendant has a lien, which would be a sufficient ground, he refuses upon other grounds, he waives the lien, and on the failure of the other ground he cannot resort to it; or where a mortgagee of a chattel takes possession, claiming to do so under a sale from the mortgagor, he is liable in trover if he fails to prove the sale.106
* Robinson v. Burleigh, 5 N. H. 225.
Vaughan v. Watt, 6 Mees. & W. Exch. 492; Dent v. Chiles, 9 Ala. 383. 95 Atkinson v. Marshall, Exch. 21 L. J. R. 117; Gaunce v. Spánton, 7 Mann. & G. 903.
Gow, 69; 7 Carr. & P. 339. 97 Holt, 383. 98 Jones v. Hart, 2 Salk. 441 ; Catteral v. Kenyon, 2 Gale & D. 545; 2 Saund, 47, g. 99 2 Crompt. M. & R. Exch. 495.
100 Irish v. Cloyer, 8 Vt. 33, 110. 101 Smith v. Young, 1 Campb. 439. 102 Thompson v. Rose, 16 Conn. 71; Lockwood v. Bull, 1 Cow. N. Y. 322; 2 Saund. 47, e. 103 Smith v. Young, 1 Campb. 439.
104 2 Saund. 47, f. 105 1 Campb. 410, note; Clarke v. Chamberlain, 2 Mees. & W. 'Exch. 78; Wilson v. Anderson, 1 Barnew. & Ad. 450; West v. Tupper, 1 Bail. So. C. 193. 106 Clark v.Rideout, 39 N. H. 238.