Boyce v. . Brockway

Davis, J. The offer to show that one of the plaintiffs had assigned his interest in the cause of action and was not then the owner thereof, was properly excluded. That fact, if proved, would not affect the right to proceed with the action (Code, § 121), nor would it present any question for the jury. The offer also to show that “ the plaintiffs, other them Mattice” were not partners, was properly excluded. Evidence had been given to show that all the plaintiffs were partners ■ in, or joint owners of the butter in question, and the offer , should have been directed to that fact. It was quite immaterial to show that three of the plaintiffs were not partners aside from the fourth, in the butter, for the plaintiffs’ proof that the partnership consisted of four persons, was necessarily a concession that it did not consist of three. The motion for nonsuit was correctly disposed of. The plaintiffs had shown substantially that several firkins of this butter, which had been sent to them by Brown, had been delivered to defendant at Catskill; that he had received the (same with notice that some portion of the butter belonged to plaintiffs, and afterwards shipped it as his own to blew York. This was a very clear prima, facie case, and it would have been error to have taken it from the jury by granting the motion for nonsuit. The defendant gave evidence tending to show that he received the butter in question in good faith, supposing it to be his own, and without any knowledge that it belonged to plaintiffs. He requested the court to charge that “ in that case if he took the same care of it as his own, and it was lost without his fault, this action was not sustained.” The *493 charge as requested would have been proper if the defendant had, under such circumstances, simply received the butter and stored it in his warehouse. Such an act would not have been the exercise of such dominion over it, as would amount to a conversion without proof of a demand and refusal. There would be no sufficient assumption of ownership by a mistaken acceptance of the property so delivered, to render him chargeable for any relation beyond that of bailee; but quite a different question arose when he shipped the butter to Hew York as Ms own. That was an assumption of dominion, which, whether founded on mistake or not, was in hostility to the ownership of plaintiffs. The law on this subject is well settled. “ The proof,” says Brown, J., in Cobb v, Dows (9 Barb., 242), “need not show a tortious taking, or that the defendants acted in bad faith. If it should appear that they obtained the goods fairly from a person whom they had reason to think was the true owner, or if they acted under a mistake as' to the plaintiffs’ title, or under an honest but mistaken belief that the property was their own, they would still be liable to plaintiffs if their acts in regard to it amount to a conversion. If they have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they are guilty of a conversion, and their liability to plaintiffs is established.” This exposition of the law is fully sustained by the authorities. (Perkins v. Smith 1 Wils., 328; Everett v. Coffin, 6 Wend., 603; Williams v. Merle, 11 id., 80; Saltus v. Everett, 20, id., 267; Hoffman, v. Cason, 22 id., 285; Covell v. Hill, 4 Denio, 323; Allen v. Crary, 10 Wend., 349; Murray v. Burling, 10 Johns., 175; Schroeple v. Corning, 5 Denio, 240; Connah v. Hall, 23 Wend., 462.) A wrongful intent is not an essential element of the conversion. It is enough in this action that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. There was nothing in the case to justify the request to charge as to the effect of mixing the butter. It was not mixed in any sense to call for the application of the rule *494 sought to be invoked. It was in separate firkins, distinctly marked with the initials of the maker, and by a cross on the end of each firkin in red chalk; and there was no wrongful act of admixture on the part of the plaintiffs or their agent that could affect its identity or tend to destroy the identity of defendant’s firkins. ¡Nor was it error to decline to charge the jury that “ if they credited the defendant’s testimony he was not guilty of converting the butter.” The charge as given is not stated in the case. We must presume it presented the questions of fact fully and fairly to the consideration of the jury. The court was under no obligation to adopt the form of charge suggested by the request, and thus, in effect, limit the consideration of the jury to the credit to be given to the testimony of a single witness. It, is not necessary to say that such a form of charge would be erroneous. It is clear that it might have a tendency to mislead a jury from the questions of fact to a mere question of the credibility of a witness, and, therefore, its adoption by the court is not a matter of legal right. The judgment of the General Term should be affirmed. All the judges concurring, Judgment affirmed.