Webber v. Davis

Goodenow, J. This is an action of trover, to recover the value of a mare which Wentworth Davis, one of the defendants, formerly owned, and which, it is supposed, was stolen from him in February or March, 1852. The writ is dated December 17, 1853. Davis made search for the mare, after she was stolen, but could not find her. About one month after she was stolen, the plaintiff and the said Wentworth Davis met, and the plaintiff offered him $20,00 for the mare, and to run his own risk as to finding her. By the proposition, if the plaintiff found the mare she was to be his property, if not, he lost the $20,00, and had no claim on Davis to recover it back. The mare was worth $60,00. The proposition was accepted, and the plaintiff paid said W. Davis the $20,00. Within two or throe weeks afterwards the plaintiff found said mare in the possession of one Ephraim Jones, in Massachusetts. Before he could succeed in getting her from Jones, tho said W. Davis claimed her as his, but he did not before the commencement of this suit, offer to rescind the contract with the plaintiff, or pay back the $20,00. The deposition of said Ephraim Jones makes a part of the case. The title will pass by a sale without delivery from the true owner, though at the time of the sale the goods are in the tortious possession of a third person. Courtland v. Morrison, 32 Maine R., 190. And a sale without delivery is valid as against the vendor. By the admitted facts in the case, we are of opinion that the property of the mare was in the plaintiff, at the time he found her in the possession of the said Ephraim Jones. Has there since that time, and before the commencement of this action, been a conversion of the same by the defendants, or either of them ? A demand and refusal are only evidence of a conversion. When there has been an actual con [152] version, and it can be proved, no demand is necessary before commencing a suit. It is not every interference with the property of another which constitutes a conversion. One person may remove the property of another person from one place to another place, without being guilty of a conversion of it to his own use. He may do it, without asserting any claim to it, for the benefit of the owner, and admitting his title to it. ■ But if one person interferes with the goods of another, and without his consent undertakes to dispose of them as having the property, he does it at his peril; and there need be no manual taking or removal in order to constitute a conversion. It is sufficient if he exercises an authority over the goods against the will and to the exclusion of the owner, by an unlawful intermeddling with them, or assumes upon himself the property and right of disposing of them. This is abundantly established by the authorities cited by the counsel for the plaintiff. Gibbs v. Chase, 10 Mass. R., 128; Miller v. Baker, 1 Met. R., 31; Bowlin v. Nash, 10 Cush. R., 418; Fernald v. Chase, 37 Maine R., 290. By the deposition of Jones, it appears that John Davis, as the agent of his father, did sell the mare in question to said Jones, for the sum of $60,00, on the 24th of October, 1853, which was before this action was commenced. And it is fairly to be inferred that he signed the obligation at that time, which is annexed to said deposition. The obligation speaks of the mare as having been “ supposed to have been stolen from us about the winter of 1851-2.” It admits that they both received the $60,00, paid by Jones for the mare, and both promised to indemnify Jones against the claim of any other person on said mare. Jones says the obligation was procured by him, and was handed to John Davis, when he was at the house of the witness, in October, 1853, to take down to his father, to be signed by him., and to be brought back in the spring or summer of 1854, when he paid for the mare; and it was taken by John, because the witness wanted Wentworth Davis’ name to the instrument. But whether [153] signed by John Davis at that time or subsequently, it is proved to have been in his hands in October, 1853; it is to be presumed that he then knew the contents of it; and it is evidence of what he then undertook to do in relation to the property in said mare, although it might have been signed by bim subsequently, and at the same time it was signed by his father. We find no foundation in thq facts reported in the case, for the argument of the defendant’s counsel, that the sale of the mare from W. Davis to the plaintiff was fraudulent and void, on account of a fraudulent suppression of facts known to the plaintiff and not known to W. Davis. The case states as a fact, that after said sale was made, and the $20,00 paid by tbe plaintiff to said W. Davis, “ within two or three weeks afterwards the plaintiff found the mare in the possession of one Ephraim Jones, in Massachusetts.” There is no evidence that the plaintiff had any knowledge that the mare could be found at that place or any other, when he purchased the mare of W. Davis. By agreement of the parties, the case having been submitted to the court upon the facts and evidence reported, with authority to draw such inferences as a jury might, and to enter judgment according to the law of the case, we have arrived at the conclusion that the defendants must be defaulted, and judgment entered for the plaintiff, for the sum of $60,00 damages, and interest on the same from the date of the writ, with costs.