Race v. Chandler

Bailey, J. We have carefully considered the evidence in this case, and are of the opinion that it fails to establish the conversion by the defendant of the promissory notes in question. “ A conversion,” says Mr. Greenleaf, “ in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff under a claim of title inconsistent with liis own.” 2 Greenl. on Ev., § 642. And as said by the Supreme Court, “ a conversion is a positive tortious act. Mere non-feasance, or neglect of some legal duty, will not suffice to support trover, although it may constitute a sufficient ground to maintain an action on the case.” Sturges v. Keith, 57 Ill. 451. We find no evidence tending to show an actual conversion. The defendant’s possession of the notes was originally rightful. They were put into his hands by the plaintiff to be bv him collected or negotiated for the plaintiff’s benefit, and nothing had occurred to change the character of his possession up to the time of the demand claimed to have been made in the office of the plaintiff’s attorney a few days before the commencement of the suit. It is not pretended that he ever appropriated them to his own use or destroyed them, and whether he performed his legal duty as bailee in endeavoring to collect or negotiate the note is immaterial, as no failure in that respect would lay any foundation for a recovery in this form of action. It is said, however, that his leaving the notes with his brother at Aurora -was of itself a conversion. Cases are doubtless to be found which hold that a bailee of goods who delivers them to another, without authority, is guilty of a conversion. But it is to be observed that the circumstances under which the notes were left at Aurora are not shown, but only the mere fact that they were left there. Before such fact, then, can be held to constitute a conversion, it must appear that, by the contract of bailment, the defendant had no authority to place the notes in his brother’s custody under any circumstances or for any purpose. We are disinclined to adopt so restricted a construction of his authority. He was emplojmd to collect or negotiate the notes without any restriction as to the mode in which that should be done, and he must, therefore, be deemed to have had authority, by implication, to make use of such instrumentalities and to adopt such mode as, in the ordinary course of business, were usually employed for such purpose. But it further appears that the notes were secured by deeds of trust, and the evidence tends to show that the defendant’s brother was the trustee. Hot only did the defendant’s authority to collect carry with it by implication the power to foreclose the security, but the defendant was afterward expressly directed by the plaintiff to procure such foreclosure. In order to foreclose the deeds of trust, it was not only proper but necessary for the defendant to place both the deeds of trust and notes in the hands of the trustee. The question remains whether a conversion is shown by evidence of a demand and a refusal. A demand and refusal do not of themselves constitute a conversion, but are only evidence of a prior conversion. And it is well settled that they are only presumptive evidence, capable of being rebutted by proof of any facts which constitute a legal justification or excuse for non-delivery. Thompson v. Rose, 16 Conn. 71; Dietus v. Fuss, 8 Md. 148; Edwards v. Hooper, 11 Mees. & Wels. 363; Huxley v. Hartzell, 44 Mo. 370; Lockwood v. Bull, 1 Cow. 322; 2 Greenl. on Ev., § 644. In Lockwood v. Bull, supra, it is said: “A demand and non-compliance are prima facie evidence of a conversion, and will induce a jury to find it, unless the defendant adduces evidence to negative the presumption. But it is competent for the defendant to give in evidence everything which tends to prove that there was no conversion.” Tiie evidence shows that the plaintiff demanded the notes in question of the defendant, but there is no evidence of a refusal by the defendant, or of any act or omission on his part which, in our opinion, is tantamount to a refusal. The notes were not present and so were not susceptible of immediate delivery. The defendant, instead of refusing to comply with the demand, assented to it, and proposed to bring the notes in from his residence at Irving Park the following day, and his proposal was assented to by the plaintiff. If it had appeared that this proposal of the defendant was made in bad faith and with no intention to perform, such conduct might perhaps have been held to be tantamount to a refusal; but the evidence is directly the other way. There can be no doubt from the evidence that the defendant fully intended at the time of his interview with the plaintiff to bring in the notes the following day and deliver them to the plaintiff’s attorney, but on reaching his home he found that his father had been suddenly taken ill, and that his illness was of such a character as to require the defendant’s presence at his bedside night and day for a number of days. That anxiety on account of his father’s illness should for the time being drive from his mind all thought of the notes was not unnatural, nor does it furnish evidence of bad faith, or of an intention to commit a tort. It can hardly be said that, under the circumstances, it was his duty to leave his father’s bedside, where his attendance was imperatively required, and make a journey to Chicago to deliver the notes, in order to escape the imputation of having tortiously converted them to his own use. As soon as his father’s health admitted of his absence, he looked for the notes at his house, but failing to find them there he concluded that he must have left them at Aurora, where he himself had a store for two years, and where his brother was then living. ITe immediately went to Aurora and' found the notes and returned by the first train to Chicago and offered to deliver them to the plain tiff’s attorney. That was the seventh day after the demand, and two days after the commencement of the suit. Mr. Greenleaf, in the section of his treatise on the law of evidence last above cited, says: “The refusal must be absolute, amounting to a denial of the plaintiff’s title to the possession, and not a mere excuse or apology for not delivering the goods at present; but it need not be expressed; it may be inferred from non-compliance with a proper demand.” Here any inference of a refusal, to be derived from the defendant’s delay in his compliance with the demand, is, we think, fully rebutted by the circumstances of the case. But it is said that the defendant agreed to deliver the notes on the day following the demand, and that his failure to do so amounted to a refusal. It should be observed that this is not a suit to enforce a contract, or to recover damages for its breach. The action of trover can not rest upon a mere breach of contract. As said by Lord Ellenborough in Severin v. Keppel, 4 Esp. 156, “ That which begins in contract, a nonperformance of what the party so undertakes to do, or a bare non-delivery of what he undertakes to deliver, is not to be considered as of itself amounting to a tortious conversion.” Doubtless the defendant’s agreement to deliver the following day should be considered as a circumstance among all the others shown by the evidence, as bearing upon the effect to be given to his delay in complying with the demand. But we are satisfied, when that as well as all the other circumstances are considered, that there was. no such unreasonable delay as amounted in law to a refusal, and therefore, that no conversion of the notes is shown. The finding of the court being unsupported by the evidence, the judgment will he reversed and the cause remanded. Judgment reversed.