Aschermann v. Philip Best Brewing Co.

LyoN, J. Both of the learned counsel, who argued the cause in this court affirm the rule of law that “ a conversion may be either, 1st, by wrongfully taking a joersonal chattel; 2d, by some other illegal assumption of ownership), or by illegally using or misusing goods; or 3d, by a wrongful detention/ ” and also that the wrongful destruction of goods by one not the owner thereof is a conversion of the goods so destroyed. Testing by these rules the act of the defendant in opening the slides between the ice-house and the beer-room, thus wasting the ice of the plaintiff, there seems little room to doubt that the ice thus wasted was converted by the defendant. It was destroyed as effectually (though perhaps less rapidly) as it would have been had the defendant taken the same quantity from the ice-house in mid-summer and exposed it a sufficient time to the rays of the sun. Had the defendant wrongfully destroyed the ice in that manner, it would undoubtedly have been a conversion of the ice so destroyed. The warmer temperature outside the ice-house is the element [267] of destruction in either case, and it is difficult to comprehend the principle upon which a person who wrongfully exposes the ice to that element in one of these ways would be guilty of a conversion, and not guilty of a conversion if he exposed it thereto in the other way. , But the question whether the act of the defendant in opening the slides, and thereby causing the ice to melt, is a conversion or not, is of no importance in the case. The testimony was all received without objection, and it tends to show- that the quantity of ice for the destruction of which damages were assessed by the jury, was destroyed by the opening of the slides. If that act was not a technical conversion of the ice, yet, if it was an unlawful act, the plaintiffs would be entitled to recover the same damages in some other form of action ece delicto. If there is a variance here, the defendant could not have been misled by it; and the rule is well settled that in such a case, a variance between the pleadings and proofs is not fatal to the action, but that the pleadings may be amended to correspond with the proofs, or the variance may be disregarded. R. S. 1858, ch. 125, secs. 33, 34, 37; Flanders v. Cottrell, 36 Wis., 564; Matthews v. Baraboo, 39 id., 674; Cody v. Bemis, 40 id., 666; Weston v. McMillan, 42 id., 567; Russell v. Loomis, 43 id., 545. It is claimed by the learned counsel for the defendant, that the plaintiffs have no cause of action in any form for the destruction of their ice caused by opening the slides. It is said that the defendant was in lawful possession of the building, and had the right to use it as it pleased; at least that it might do so after notice to the plaintiffs to remove their ice from it. This proposition is plausible, and was ingeniously argued; yet we are constrained to think that it is unsound when applied to the facts of this case. To illustrate: My neighbor may have provisions in my cellar, which he suffers to remain there wrongfully after I have notified him to remove them. Tet if I consume his provisions, or destroy them in any other manner, he may maintain trover against me for converting them.- And it is quite immaterial whether I consume them, [268] oi’ destroy tliem by casting them into tbe street, or by opening my cellar and causing their destruction by the action of the elements. The result to the owner is the same, and my liability to him is the same, in either case. Of course I have legal remedies against my neighbor for thus unlawfully suffering his property to remain on my premises; but the right to destroy his property is not one of them. So in this case, we think that whatever legal remedies the defendant had against the plaintiffs, for their failure to remove the ice within a reasonable time after notice to remove it, the defendant had no legal right to use the ice, or to destroy it in any other manner. Hence the defendant is liable to respond in damages to the plaintiffs for the value of the ice so used or destroyed by it. As we understand the rulings of the learned county judge on the trial of the action, they are all in harmony with the foregoing views. Finding no error disclosed in the record, we must affirm the judgment of the county court. By the Gowrt. — Judgment affirmed. Ryan, 0. J., took no part.