Bisbee v. Fadden

C. Allen, J. It is plain that the defendants had no title to the property, and the principal question was whether they had possession' of it under such circumstances that they were liable to an action of replevin by the plaintiffs. The evidence was quite sufficient to warrant a verdict for the plaintiffs. The defendants themselves testified," that they took the property for safe keeping for the old company, — which had no title to it, or right of possession, after the new company should be formed; that they anticipated no danger to the property where it was before they took it; and that they did not take it with the purpose of handing it over to the new company. This taking was by virtue of a vote passed by a portion of the old company, appointing a committee to take charge of the company’s property after May 1. This property included the trumpet and officers’ badges, as well as the furniture. The whole property appears to have been taken under this vote. The jury might well find that the taking was tortious, and the detention tortious, so that no demand was necessary. It was clearly to be inferred that the defendants took their action for the very purpose of keeping the property away from the new company, which would have the right to its possession and use. Perry v. Stowe, 111 Mass. 60. Brookline v. Sherman, ante, 1. The fact that, at the time of the original taking, the plaintiffs had not been appointed as enginemen, would not, under these circumstances, render a demand necessary after their appointment. The defendants’ act was a wrongful one at the time it was committed, and their detention of the property continued to be wrongful; and the plaintiffs, as soon as they became entitled to the possession, might assert it by an action. The first six requests by the defendants for instructions all rested on the theory that a demand was necessary. The general effect of the instructions which were given was, that the defendants had no right to keep the property for themselves, or for the previous company; and if they intended to keep it from the new company, or for any other company, then, upon this issue, [13] ¿he plaintiffs were entitled to a verdict; while, if the taking of the property was for the purpose of safe keeping, then the plaintiffs must make a demand, or they cannot maintain replevin. These instructions were sufficiently favorable to the defendants; and the first six requests were properly refused. The seventh request was properly refused, as inconsistent with the doctrine of Perry v. Stowe, above cited; and we see no foundation for the eighth request. This disposes of all the exceptions which were taken at the trial. The defendant has, however, criticised the phraseology of some of the instructions which were given, to which no exception was taken at the trial. In respect to this, it is sufficient to say that we see no reason to apprehend that any injustice was done by the verdict of the jury. Exceptions overruled.