Porter v. . Alexander

*7 Adams, J. Tbe appellant excepted to tbe court’s refusal to dismiss tbe action as in case of nonsuit, assigning as ground for its exception tbe lack of evidence to sbow its conversion of tbe plaintiff’s property. Granting tbe plaintiff, in accordance witb tbe accepted rule, all inferences tbat may reasonably be drawn from tbe evidence, we are of opinion tbat tbe exception should not be sustained. The law of conversion was developed through the common-law action of trover, which was applicable to cases in which the plaintiff bad lost goods that were afterwards found and appropriated by the defendant. The referee found in effect that the sale was made by the defendant or by the State Highway Commission for its benefit; but conversion of the plaintiff’s property was not necessarily dependent on the alleged sale. The basis of the action is the loss to the plaintiff, and such loss may be caused by the defendant’s wrongful assumption of dominion over the property. Eetaining personal property in denial of the owner’s right is no less a conversion than is wrongfully taking or destroying it, the detention constituting an unwarranted assumption of title. Hale on Torts, sec. 204 et seq.; Nichols v. Newsom, 6 N. C., 302; Carraway v. Burbank, 12 N. C., 306; Hare v. Pearson, 26 N. C., 75; Glover v. Riddick, 33 N. C., 582; Rhea v. Deaver, 85 N. C., 337. Considered in the light most favorable to the plaintiff, the evidence tended to show that the defendant took possession of the plaintiff’s property when it bad no substantial claim of right to it, and instructed its agent, who bad the actual possession and was informed of the plaintiff’s title, “not to let anybody have anything”; that the property was afterwards sold, and that the defendant thereby suffered loss. It was said that upon bis own admission the plaintiff did not make a formal demand of the defendant before bringing suit; but the plaintiff contends that the conversion was effected when the property was wrongfully taken, and that a formal demand for its return was not an incident necessarily precedent to the institution of the action. In University v. Bank, 96 N. C., 280, the Court quoted with approval Chitty’s statement that “in the case of a conversion by wrongful taking, it is not necessary to prove a demand and refusal.” Furthermore, it is perfectly evident that a formal demand would not have availed the plaintiff because the defendant’s agent bad been specifically instructed to retain possession of the property. In this view of the case, we deem it unnecessary to pursue the inquiry whether the sale was made by the defendant or by the State Highway Commission, though we must not be understood as saying that there was no evidence tending to sustain the referee’s finding, approved by the judge, that the sale of the plaintiff’s property was made for the benefit of the defendant. *8 There was evidence in support of the defendant’s position; but the determinative question is whether in any view of the testimony the plaintiff’s theory can be maintained, and this question has been resolved against the appellant. The judgment is Affirmed.