Gragg v. Hull

The opinion of the court was delivered by Peck, J. The evidence in relation to the demand and refusal does not justify the charge of the court on the question of conversion. In the action of trover, a rightful demand and a wrongful refusal are in law a conversion. On trial there was a dispute as to the amount of property which the defendant had turned out and which the plaintiff had a right to demand, and upon the evidence the jury may have found the plaintiff entitled to no more of the property which the witness Bean demanded; than what the evidence on the part of the defendant tended to show had been turned out. But it appears that Bean, when he made the demand, on the occasion of serving the writ in this case, demanded also a great variety of other articles of property. If the jury found the amount of property which had been turned out, to be as the defendant claimed, then the demand as to the excess was not rightful. The mere fact, that Bean embraced in his demand of the property more property than he had a right to, would not justify [223] tbe defendant in refusing or neglecting to deliver witbin a reasonable time that part of tbe property demanded, to which the plaintiff was entitled. The county court were right in this abstract ■proposition; and, if nothing more had appeared, the charge on this point would have been substantially correct. But when it ■appears that, on the defendant’s claiming to Bean that he did not turn out all the property that Bean demanded, Bean informs him that he was instructed by the plaintiff’s attorney not to accept .any of the property less than the whole that he had demanded, ■and that he should follow his instructions, Bean then having the writ in this case, which he was about to serve and which he immediately did serve, the case is quite different. This instruction to Bean, so communicated to the defendant, absolved the defend•ant, under the circumstances, from the duty of presenting and tendering that portion of the property demanded which the plaintiff was entitled to, if the jury should find the plaintiff not entitled to the whole, and the jury should have been so instructed. The instructions on this point to the contrary, were erroneous. Upon the facts which the evidence tended to prove, the case was one appropriate for the application of the legal principle that a party is not bound to do a nugatory act; more especially, as the demand was made at Irasburgh, and the evidence was that the property ■which the defendant had turned out, was, either all or a part of it, not present, but still in the defendant’s shop at Derby, where it was when turned out to the plaintiff and left in the defendant’s possession; of which fact the defendant informed Bean at the time of the demand. But even if Bean had said nothing which had the effect to excuse the defendant from complying with the demand by delivering so much of the property demanded, as the plaintiff had a right to, the defendant was entitled to a reasonable time to deliver the property, if there were no denial of the plaintiff’s right and no -refusal; and what would be a reasonable time, would depend in a measure upon the distance the property was from the place of demand. If the defendant refused absolutely to deliver that portion of the property demanded, which he claimed he never had turned out, as the evidence tended to show, and the jury should [224] find that the plaintiff was entitled to tbe whole that Bean demanded, the defendant would not be entitled to time to do what he declared to Bean he would not do, and the writ might properly have been served immediately. But if the jury should find that, the defendant did not refuse to deliver the property that the plaintiff was entitled to receive, nor deny the plaintiff’s right to it in such manner that a refusal, or an intention not to deliver, might be inferred, the plaintiff would be entitled to a reasonable time to deliver the property; and, in this view, if the property was at. Derby, as the evidence tended to show, and Bean was so informed by the defendant at the time of the demand, the action was prematurely commenced and the plaintiff could not recover. The defendant was entitled to' a charge substantially as above stated, especially as the attention of the court was called to the question by the defendant’s third request. The charge, leaving it to the jury to say whether “ they were satisfied that the defendant had sufficiently accounted for his neglect or refusal to deliver the property,” etc., without informing them what facts would in law constitute an excuse, was too indefinite to furnish a proper guide-to the jury. It was leaving law and fact combined to the jury,, which ought to have been severed. For the reasons stated, the defendant is entitled to a new trial. As the judgment is to be reversed, we have not considered the question made as to the adjudication of the county court granting, the certificate. Judgment reversed, and new trial granted.