Burnham v. Marshall

The opinion of the court was delivered by Taft, J. The commingling of the honey by the defendant’s [367] intestate, did not of itself constitute a conversion of it. It was lawfully in his possession, and no demand of it was made of him; so that the question of whether trover will lie against an administrator, for a conversion by his intestate, does not arise. The plaintiff demanded the property of the defendant, who, then and there, had it in his possession and control, and who refused to deliver it to the plaintiff, upon the ground that the lien reserved at the time of the sale was invalid, not being evidenced by writing, recorded as provided in i?. L. s. 1992. The sale of the property as between the parties was a valid one. The defendant was not an attaching creditor within the meaning of the statute and had no more right to the property than his intestate had at the time of his death., The lien reserved being a valid one, the'defendant, in possession! of‘the property exercising dominion over it, claiming to own it, and subsequently selling it, taking the proceeds for his own use, a lawful demand having been made, was ■ guilty of a conversion in' refusing to deliver it. The defendant claiming to own the plaintiff’s honey wilfully commingled it with 1ns own, so that it was impossible to identify it, it might well be held, that all of the property became the plaintiff’s. ' If so, he might under the circumstances disclosed in this case maintain an action for the value of the whole; but as he seeks to recover for only what he originally owned we think the defendant cannot complain of the judgment below; which is affirmed.