Guarantee Bond & Mortgage Co. v. Hilding

*340 Fellows, J. (after stating the facts). Writers ' and courts have used language which tends to support the view of the learned trial judge, that defendant’s acts of pasting the notices on the windshields and asserting title in himself were per se *341 a conversion. Indeed, it is somewhat surprising to find such a variety of holdings as to what constitutes conversion. Bacon, in his Abridgment (9 Bouvier’s Ed. Bacon’s Abridgment, p. 638), said: “It is not requisite to show a manual taking of the thing in question, nor that the defendant applied it to his own use, to constitute a conversion; the assumption of a right to dispose of it, of the exercise of dominion over it, to the exclusion or in defiance of the plaintiff’s right, is a conversion.” And Lord Ellenborough, in McCombie v. Davies, 6 East. 538, said: “But taking the case higher up upon principle, I think that the defendant’s acts amount to a conversion. According to Lord Holt in Baldwin v. Cole (a) (6 Mod. 212), the very assuming to oneself the property and right of disposing of another man’s goods is a conversion; and certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into effect. ’ ’ However, Mr. Greenleaf lays down this rule (2 Greenleaf on Evidence [16th Ed.], p. 588): “The plaintiff must, in the next place, show that the defendant has converted the goods to his own úse. A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff, under a claim of title, inconsistent with his own. It may therefore be either direct or constructive; and of course is proved either directly or by inference. Every unlawful taking, with intent to apply *342 the goods to the use of the taker, or of some other person than the owner, or having the effect of destroying or altering their nature, is á conversion. But if it does not interfere with the owner’s dominion over the property, nor alter its condition, it is not.” And Mr. Bouvier defines “Trover” as follows (2 Bouvier’s Law Dictionary [Rawle’s 1st Ed.], p. 1142): “A form of action which lies to recover damages against one who has, without right, converted to his own use goods or personal chattels in which the plaintiff has a general or special property.” In an early Alabama case (Freeman v. Scurlock, 27 Ala. 407), Chief Justice Chilton, speaking for the court, said: “What is conversion? It is not confined to the unlawful turning, or applying of the personal goods of another, to the use of the taker. Nor is it necessary to constitute a conversion-that the party should have had the exclusive control or dominion over the goods, or the actual manucaption of them.” But in an early Vermont case (Irish v. Cloyes & Morse, 8 Vt. 30 (30 Am. Dec. 446]), it was held: “Any mere assertion of the right of dominion, is never permitted to go to the jury, in cases of trover, as evidence of a conversion, unless the assertion is made in view of the property, and in presence of the owner, and in order to deter him from exercising his just control over it.” The Rhode Island court holds (quoting from the syllabus in Donahue v. Shippee, 15 R. I. 453 [8 Atl. 541]): “To sustain an action of trover it is sufficient to show a wrongful assumption of dominion by the *343 defendant over the plaintiff’s property, and in violation of the plaintiff’s rights.” But the view of the North Carolina court is somewhat different, as expressed in the syllabus of University v. Bank, 96 N. C. 280 (3 S. E. 359), as follows : “Conversion consists either in the appropriation of the thing to the party’s own use; or in its destruction; or in exercising dominion over it in exclusion or defiance of the plaintiff’s rights; or in withholding the possession from the plaintiff, under a claim of title, inconsistent with that of plaintiff, but it must be by acts, as bare words will not amount to a conversion.” "Without quoting further from the cases from other jurisdictions, it may be said that the following cases are. worthy of perusal: Davis v. Buffum, 51 Me. 160; Hall v. Amos, 5 T. B. Mon. (21 Ky.) 89 (17 Am. Dec. 42); Sammis v. Sly, 54 Ohio St. 511 (44 N. E. 508, 56 Am. St. Rep. 731); Polley v. Lenox Iron Works, 2 Allen (84 Mass.), 182; Gillet v. Roberts, 57 N. Y. 28; Sturges v. Keith, 57 Ill. 451 (11 Am. Rep. 28); Winchester v. Joslyn, 31 Colo. 220 (72 Pac. 1079, 102 Am. St. Rep. 30); Hall v. Merchants’ State Bank, 199 Iowa, 483 (202 N. W. 256, 38 A. L. R. 1093, and note); Kreher v. Mason, 33 Mo. App. 297; Spooner v. Manchester, 133 Mass. 270 (43 Am. Rep. 514, note); Bristol v. Burt, 7 Johns. (N. Y.) 254 (5 Am. Dec. 264). From an examination of the cases, we are satisfied that the better rule is that while a manual possession of the property is not necessary to constitute a conversion, something more than the use of words is necessary. The words used may be evidence of a conversion, but are not conversion per se. This court has, in common with courts generally, held *344 that refusal to deliver possession pursuant to a lawful demand is not conversion, but only evidence of a conversion. Felcher v. McMillan, 103 Mich. 494. The language of Mr. Justice Hooker, in Kunze v. Cox, 113 Mich. 546 (67 Am. St. Rep. 480), is applicable here. He said: “The action is trover, and, to sustain it, it was necessary that it be shown that some of this property was converted by the defendant. The fact that it was levied upon and advertised is not sufficient to establish a conversion. Some one must have taken it into possession, and deprived the plaintiffs of it, by removal or otherwise, under circumstances which show that the defendant was legally chargeable with such deprivation.” The defendant points to the fact, that in plaintiff’s bill for foreclosure, it alleged that the property involved was then (February 15, 1921, the date the trial court held the conversion took place) in possession of plaintiff and one Tompkins, and that such bill was sworn to by plaintiff’s president, and defendant insists that this required the court to direct a verdict in his favor. The plaintiff points to the fact that in defendant’s bill in the Federal court, which he swore to, it alleged that he, defendant, was then in the actual possession of the property here involved, and plaintiff insists that this sustains the verdict directed. The statements in the pleadings are admission against interest and admissible as such; they may be explained and are not conclusive. Bullen v. Wakefield Crushed Stone Co., 235 Mich. 240. Upon this record, the trial judge was in error in holding that the undisputed evidence established a conversion as of February 15, 1921, and directing a verdict for plaintiff. The case should have gone to the jury under proper instructions. *345 Without discussion, we will dispose of some minor questions. It was not error to permit plaintiff to amend by alleging a different date in its declaration-as the date of conversion. Sayre v. Railway Co., 205 Mich. 294; Hapke v. Davidson, 180 Mich. 138. The bills of sale (in form but in reality chattel mortgages) created separately liens on the property named in each of them, and were enforceable only for the" amount of each upon the property enumerated in them. The plaintiff is not estopped from maintaining this action by the fact that it sought to foreclose its mortgages in Kent circuit court, which suit was enjoined by the Federal court on the bill there filed by the defendant, nor is it estopped by the fact that it purchased the automobiles at the trustee’s sale in an attempt to minimize its loss. The judgment must be reversed, and the case sent back for a new trial. Defendant will recover costs of this court. North, C. J., and Fead, Clark, Potter, and Sharpe, JJ., concurred with Fellows, J.