Whitney v. Slauson

By the Court, Johnson, J. This action is not in the nature of a special action on the case, for the loss of the goods, through the carelessness or negligence of the defendants as bailees, but is in thS nature of an action of trover for the wrongful withholding and detention of such goods, upon demand by the plaintiff. To sustain the latter action, it is necessary for the plaintiff to show affirmatively the facts requisite to constitute a conversion. He must show a wrongful detention after demand. A mere neglect, on the part of the defendant, to deliver upon demand, unless the goods are then in his possession, does not Work a conversion of the property. The remedy in such case is by another action. (Hawkins v. Hoffman, 6 Hill, 586. Hill v. Covell, 1 Comst. 522. Hall v. Robinson, 2 id. 293. Bowman v. Eaton, 24 Barb. 528.) The ability of the defendant to comply with the demand when made, is an essential part of the proof, on the part of the plaintiff, to sustain the action for a wrongful conversion. The referee has found that the goods belonged to the plaintiff’s assignor, and that the defendants had them in possession, and did not ship them to the owner as they undertook to do. He also finds that there is no evidence before him to show what became of the goods after they were left in the defendants’ possession. It is contended, on behalf of the appellant, that from the facts found by the referee, the law will presume the goods to have been in the defendants’ possession, at the time of the demand by him. The referee finds that the goods were purchased by Crank, the plaintiff’s assignor, of the defendants, and were by the latter boxed for him, on the 4th of December, 1855. The goods were sold and assigned by Crank to the plaintiff, on the 27th of October, 1856. The demand by the plaintiff appears to have been made soon after, and about a [279] year after the purchase by Crank, from the defendants. Under such circumstances, in the absence of all evidence as to what had become of the goods, the law, I think, will not presume that the defendants had them in possession, at the time they were demanded in behalf of the plaintiff; and the referee was right, therefore, in his conclusion of law, that the defendants did not wrongfully detain the goods. [Monroe General Term, December 5, 1859. The assignment to the plaintiff doubtless carried with it any existing right of action against the defendants for a prior conversion, or negligent loss of the property. (McKee v. Judd, 2 Kernan, 622. Waldron v. Willard, 17 N. Y. Rep. 466.) The plaintiff, however, upon the trial, disclaimed any purchase of any prior right of action, and claimed only on the ground of a purchase of .the title of the goods, from Crank. But upon the same rules above adverted to, no cause of action was proved in favor of the assignor. The cause was therefore disposed of correctly by the referee, and a new trial must be denied. Judgment accordingly. T. R. Strong, Smith and Johnson, Justices.]