Scollard v. Brooks

Allen, J. We cannot say that there was no evidence upon which the plaintiff was entitled to go to the jury. There was some evidence of a gift and delivery of the articles. The auditor so found, and the testimony of the plaintiff and of her sister furnished some evidence to the same effect. It would seem that it was not expected that the plaintiff would take the things away before the donor’s death, and one or two articles of wearing apparel were used by the donor after the alleged gift. This would have well warranted, but it did not absolutely require, a finding that there was no present delivery. While we are not inclined to relax the rules calling for strict proof in cases of this kind, we are unable to say that there was no evidence at all, and no doubt the jury were clearly instructed in the law. There was also some evidence of a conversion by the two defendants now before the court. Conversion may be shown by the exercise of control over the property, inconsistent with the right of the owner, and by excluding him from the possession or depriving him of it. Luddington v. Goodnow, 168 Mass. 223. Brintnall v. Smith, 166 Mass. 253. Edmunds v. Hill, 133 Mass. 445. Spooner v. Manchester, 133 Mass. 270. Spooner v. Holmes, 102 Mass. 503. The auditor found that Mr. Brooks and Miss 449 Richardson- both did this. The plaintiff also testified that Mr. Brooks told her she could not have the things, and that Miss Richardson told her, “No, you shall not take them.” This,, with some other evidence, had some tendency to show a conversion. Exceptions overruled.