Rice v. Clark

The opinion of the court was delivered by Redfielb, J. The only question in this case is, whether the [110] testimony given bad any tendency to show a conversion of the by the defendant. 'It is very well settled that a demand and refusal, when the defendant has it not in his power to deliver the property is no evidence of conversion. — Smith vs. Young, 1 Camp. 439. In the case referred to the deed which was the subject of the suit had been by defendant put into the hands of an attorney without authority, and the attorney claimed to hold itTyll lien, created in this way : — Whenever the plaintiff in an action of trover relies upon showing a demand and refusal as evidence of a conversion, he must always accompany it by showing the property in the possession and power of the defendant at the time of the demand. — 3 Stark. Ev. 1497. — Bull. N. P. 44. — 2 Salk. 441. In this case it was not attempted to show that the defendant had the anchor in possession at the time of the demand. — 2 Saund. R. 47, e.f. and notes. But it is observable that this anchor belonged to plaintiff’s boat, -which had been wrecked on the lake, of which one Blodget was master. The defendant received the anchor of Blodget, saying ?at the same time that he wished it for one Sax at Chazy N. Y. The anchor was carried to Sax, and by him put to use and in the ,use much damaged. The only question here is, whether Blodget 'had authority, as master of the boat, to lend the anchor. And we have no hesitation in saying he bad not. After the wreck of the boat, it was his duty as master to secure the fragments of the wreck and notify the owner., but he had no authority to sell, much less to lend or rent any portion of the tackle or boat. His agency then expired. If he did lend or sell any part of the boat without permission from the owner it was a conversion of the property, and equally a' conversion in the defendant who, with a full knowledge of all the facts, hired the anchor of one who had no authority to make such a contract. Taking it under these circumstances is the same as if he had taken it by way of trespass, and he is clearly liable in trover unless he can show to the satisfaction of a jury, that the plaintiff either gave Blodget permission to lend, or ’ subsequently consented to the loan. There was some testimony in the case in some degree tending to show that the plaintiff gave the defendant to understand by his conduct, that he consented to the contract made by Blodget. But this is a question of fact which should have been submitted to the jury. — 2 Stark. Ev. 1493, - vs. Hoy. — 4 Term R. 260. — 2 Saund. R. 47, f. n. k.— 2 Camp. 335, Wilkinson vs. King. — 2 Stark. 311. — 1 Cowen. 322, Lockwood vs. Bull. [111] Had the defendant proved authority in Blodget, or plaintiffs’ subsequent assent to the contract, he would then have become a bailor of the goods for use, and not liable in trover for any abuse of the chattel in the particular use for which it was tried. The plaintiff’s remedy, if any must have been lost. — 3 Stark. Ev. 1493. — 2 Saund. R. 47, e. f. * The judgment of the county court is reversed and a new trial granted.