Wimberly v. Pitner

Ellison, J. This action is for damages for the conversion of certain personal .property, which, the [635] petition charges, the defendant took from the plaintiff, against the will of plaintiff and unlawfully converted to his own use. The answer was a general denial. The bill of exceptions is by the short method and recites that the evidence for plaintiff tended to establish the allegations of the petition, and that defendant offered evidence tending to show that he was a mere bailee of the property and had'disposed of it as directed by plaintiff. The court gave an instruction in behalf of defendant, that there must have been a demand made for the property by plaintiff of the defendant. This was error. If the defendant took the property from plaintiff against his will, and unlawfully converted it to his own use, as is alleged, and as the evidence tended to prove, then no demand was necessary, since there was a conversion by the act itself and a demand was not necessary. We said in Lafayette Co. Bank v. Metcalf, 40 Mo. App. 502, that, “the office of a demand is evidential and not creative,” and that, “an actual conversion, where shown, dispenses with a demand.” There are cases where one may be the lawful bailee of another, under such circumstances as that there could be no conversion — at least, no outward evidence of it— until after a demand for the property and a refusal to give it up. But the plaintiff, according to the record before us, did not make out a case of that kind. He made out a case of actual conversion, aside from a demand. By the instruction given, the court destroyed plaintiff’s case as made out by his evidence. The instruction should have been so worded that if the plaintiff’s theory was believed by the jury, a demand was not necessary, and if the defendant’s was believed, a demand was necessary. Something has been suggested as to the bill of exceptions not portraying the facts as they actually took [636] place at the trial, but of this we can not tafee notice, since we must accept the record as presented. The judgment is reversed and cause remanded. All concur.