Blakey v. Douglass

Opinion by Mr. Justice Sterrett: The action of trover is grounded on the legal fiction of finding X>ersonal property casually lost by the owner, and subsequent conversion of the same by the finder to Ms own use or the use of [499] another. As was said by Lord Mansfield : “In form it is a fiction; in substance it is a remedy to recover the value of personal chattels wrongfully converted by another to his own use.” 1 Chitty, Pl. 162. The gist of the action is Hie wrongful conversion. On trial of the general issue, it is incumbent on the plaintiff to prove that before and at the time of conversion he had a complete title, either general or special, to the property in controversy, coupled with the right of immediate possession; and that the property has been wrongfully converted by the defendant to his own or another’s use. If actual conversion be shown, evidence of demand and refusal, before bringing suit, is unnecessary; but if not, there must be proof of such a demand on and refusal by the defendant as will warrant the inference of actual conversion. Refusal to comply with a proper and formal demand is not ipso facto. conversion. It is only a fact from which a wrongful conversion may be inferred, provided the circumstances are such as to warrant that inference. If they are not, the ease should be withdrawn from the jury by binding instructions to find for the defendant, as was done in (his case. The defendant may rebut either of the allegations of fact on which the plaintiff’s right of action depends. For example, he may show outstanding, paramount title to the property in controversy, or that he has not wrongfully converted it to his own use, or that it has never been properly demanded by the plaintiff, etc. To maintain the issue on her part, the beneficial plaintiff introduced testimony tending to prove that by virtue of au execution issued October 30, 1883, on a judgment against Blakey & Rhine, the property in controversy, a portable steam sawmill, was levied on as the property of that firm, and sold to her by the sheriff on the 29th of November following. Testimony was also introduced which she claims tended to prove a demand on defendants for the mill, and their refusal to comply therewith. The defendants, conceding that prior to the 20th of September preceding the sheriff’s sale the mill was the property of Blakey &. Rhine, introduced testimony tending to prove that on the last-mentioned date, more than a month before the execution on which it was sold was issued, the mill was sold and delivered by the firm to the Pittsburgh Furnace Company in payment of balance of the purchase money due on the mill. As to the fact that the mill was thus sold by Rhine, one of the partners, to pay [500] a firm debt, the testimony was positive and uncontradicted, and the witnesses who testified thereto were not impeached. If the case had been submitted to the jury on the question of paramount title, it is difficult to see how they could have found otherwise than that the furnace company owned and was in possession of the mill when the execution above mentioned was issued. If that was so the beneficial plaintiff took nothing by her purchase at the sheriff’s sale. There was no direct proof of conversion, but plaintiff’s claimed there was evidence of demand and refusal from which the inference of wrongful conversion might be drawn by the jury. The learned judge, however, was of opinion that the testimony on that subject was not such as to warrant the inference sought to be drawn therefrom, and he accordingly instructed the jury to render a verdict for defendants. In so doing it is contended there was manifest error; but, in view of facts about which there could be no controversy, we are not prepared to say there was. The only parties claiming title to the mill were the Pittsburgh Furnace Company and Mrs. Blakey, the former by purchase at private salo, and the latter by purchase at sheriff’s sale on an execution issued more than a month after the date of the private sale. Immediately after the sale and delivery of the mill to the furnace company it was left by that company in the care and keeping of Glenn & Sons, to whom it had been leased by Bhine, one of the firm of Blakey & Bhine, who then owned it. Subsequently it passed into the possession of defendants under a similar arrangement. The position of the defendants was well known to the beneficial plaintiff. They at no time claimed the mill as their own; and nothing that was ever said or done by them would warrant the conclusion that they intended to convert or ever did wrongfully convert it to their own use or the use of the Pittsburgh Furnace Company, from which they received it. It is very evident, moreover, that the so-called demand was made not so much for the purpose of obtaining possession of the mill as with the view of entrapping the defendants and compelling them to pay the value thereof. Again; they could not have fully complied with the demand made upon them, without surrendering the shingle ■mill, included therein, to which no title whatever was shown by the plaintiffs. In short, the evidence both as to plaintiffs’ title to the mill, and the fact of wrongful conversion by defendants, [501] was not such as would have warranted the jury in finding either in favor of plaintiffs. If the case had been submitted to the jury and they had returned a verdict in favor of plaintiffs, the court below, doubtless, would have felt constrained to set it aside. The view we have taken of the controlling question in the case renders it unnecessary to consider the remaining specifications of error. Judgment affirmed.