Clark v. Hale

Park, J. The questions made in this case by the defendant are too clear for controversy. The first question arises upon the charge of the court with regard to the effect of the demand and refusal. The court instructed the jury that, “ to sustain the action, the plaintiff must show a propei'ty general or special in the wagon, such as to entitle him to the possession at the time of the demand, and if the jury were satisfied from the evidence that the plaintiff owned the wagon, a demand and unconditional refusal might properly be considered, in the absence of satisfactory evidence to rebut the presumption of a conversion, sufficient to warrant them in finding a verdict for the plaintiff.” The refusal of the defendant to deliver the property to the plaintiff was absolute and unconditional. He gave the plaintiff to understand that the wagon belonged to the- defendant, and under no circumstances would he deliver it to the plaintiff. The absence of the wagon was not the cause of the refusal. The charge of the court was unexceptionable. Thompson v. Rose, 16 Conn., 71; 2 Hilliard on Torts, 254, 262; Sargent v. Gill, 8 N. Hamp., 325; Story on Bailments, 102. The defendant further claims that the court erred in charging the jury in accordance with the plaintiff’s request upon the following facts :— “ The plaintiff claimed that it was proved, by the evidence of Basset, who was offered by the defendant, that when Basset sold the wagon to the defendant, he informed him that he had conditionally bought it of the plaintiff, and had paid one [402] half the price, and was to have the title when he paid the balance, and that the defendant took it and subsequently, until the commencement of the suit, claimed and treated it as his own, with full knowledge that Basset did not own it, and thereupon the plaintiff asked the court to instruct the jury that such purchase from Basset, though the defendant paid the full value, and such subsequent exercise of ownership over it, constituted a conversion. The court instructed the jury that if they found these facts proved, they were sufficient to establish a conversion, and their verdict should be for the plaintiff.” The defendant insists that the court erred, on the ground that the plaintiff, after having offered evidence tending to show a conversion of the property by proving a demand and refusal, was precluded from showing that the defendant had in fact converted the property, on the ground that there is but one count in the plaintiff’s declaration. This claim is without foundation. The demand and refusal is only evidence of a conversion of the property at some time previously thereto. There could have been but one conversion ; and all proper evidence tending to show the fact, either directly or indirectly, was proper evidence to be received. The defendant further claimed on this point, that the court erred in instructing the jury that if they should find the facts proved as claimed by the plaintiff they were sufficient to establish a conversion of the property. The defendant bases this claim upon the fact that Basset conditionally purchased the property of the plaintiff. There is nothing in the motion which shows that the defendant offered any evidence tending to prove this fact. The defendant merely offered evidence that when he purchased the property of Basset he was informed by him that the plaintiff had conditionally sold the property to him; but this is no evidence of the fact. What Basset told the defendant when he made the purchase, could not be received to affect the title of the plaintiff. The defendant’s motion therefore does not show any foundation for this claim. It appears by the motion that the defendant further claimed to have proved “ that when he bought the wagon of Basset, ho [403] did so in good faith, supposing Basset was the lawful owner; that it was not in running order, and that he was obliged, in order to make it so, to expend upon it in necessary repairs a considerable sum of money, which he did before any knowledge of the plaintiff’s claim; and he asked the court to instruct the jury that, if they found these facts proved, he would have a lien on the wagon and a right to detain it in his possession until he was i’eimbursed what he had expended, and that their verdict should be for the defendant.” The court declined to give this instruction. This claim of the defendant is obviously untenable. The fact that the defendant purchased the wagon in good faith under the supposition that Basset was the owner, without connecting the plaintiff in any way with the sale, or with knowledge of the repairs till after they were made, could not create a lien upon the wagon in favor of the defendant. The remaining questions raised by the defendant, excepting the last, are based upon the ground of a conditional sale of the property from the plaintiff to Basset. We have already said that nothing appears in the motion to lay any foundation for such claims, and they therefore cannot be considered. The last claim of the defendant was fully complied with by the court in the charge to the jury. A new trial is not advised. In this opinion the other judges concurred.