Jamison v. Hendricks

Holman, J. Trover for a horse. The substance of tbe evidence, as set forth in a bill of exceptions, was, that Hendricks lent the horse to Davis, in Marion county, to ride to Corydon. The horse was taken in execution, at Corydon, as the property of Davis, and sold, and Jamison became the purchaser. At the time of the levy, Davis proclaimed that the horse was not his, but belonged to Hendricks. Before tbe commencement of this suit, Jamison fold one of the witnesses, that, when Hendricks came in search of his horse, he was out at grass. After the commencement of the suit, Davis observed to Jamison, that he did not pity him, for he had fold him before, that the horse was the property of Hendricks. One of the witnesses stated that ■¡he horse was worfh 30 dollars. The horse was purchased by [95] Jamison in 1822; this action was commenced in 1825; and the trial was had in October, 1826. The defendant moved the Court to instruct the jury, that it was necessary for the plaintiff to prove a tortious conversion, or a demand and refusal of the horse. The Court gaye that instruction. The defendant further requested the Court to instruct the jury, that to prove a conversion in this case, it was necessary to prove a demand of the horse and a refusal to deliver him up: but the Court instructed the jury that the using the horse as his own by the defendant, or exercising acts of ownership over him, was a conversion of the property. The jury found a verdict fpr the plaintiff fpr 61 dollars. The defendant moved for a new trial, which was refused by the Court. The point most relied on in this case, arises out of the instruction of the Court, that proof of a demand and refusal was unnecessary. This instruction of the Court is to be taken in connection with the whole case, as it stood before the jury. The officer, on an execution against Davis, had taken the property of Hendricks, notwithstanding the proclamation of Davis that the property was not his, and was liable to the action of Hendricks, either of trespass or trover, without a demand. Jamison before he purchased the horse was notified by Davis, that the horse belonged to Hendricks. This notice, it is true, did not come from a source in which Jamison was bound to place full confidence; yet it was sufficient to put him upon his guard; and to induce him to take care what he was purchasing. This, taken in connection with the statement of Jamison, when Hendricks came for his horse, and was prevented, by some evasion, from seeing or getting possession of him, he being kept out of the way, that the horse was “out at grass,”—presents a chain of circumstances, sufficient to warrant this action without a regular demand and refusal; inasmuch as they show that Jamison rnust have been exercising acts of ownership over the horse, after he had sufficient reason to believe that he was the property of Hendricks; and made use of evasive measures to prevent Hendricks from obtaining him. In the case of Baldwin v. Cole, 6 Mod. 212, it is said that the denial of goods to him who has a right to demand them is an actual conversion. And in the case of La Place v. Aupoix, 1 Johns. Cas. 406, the defendant’s admission, that he had the plaintiff’s goods, and that they were [96] lost, was held to he evidence of a conversion without proof of a demand and refusal. See also 3 Stark. Ev. 1496, and various other authorities there cited; which lead to the conclusion JU1T in ibis case? were authorised to find that the defendant had converted the horse t.o his own use. JVelson, for the appellant. Fletcher, for the appellee. The damages given by the jury are perhaps more than in strict justice ought to haye been givep; but as the defendant had beep about four years in possession of the horse, and as the plaintiff is entitled to recover for the injury done to his gopds, as well as for their value, (1 Stark. Ev. 199, in note, and the case there cited,)—we are not prepared to say, that the damages are so conclusively excessive, that the Circuit Court, in the exercise of a sound legal discretion, was bound to grant a new trial on that account. Per Curiam. The judgment is affirmed, with 1 per cent, damages and costs.