9. Wrongful taking.-It should be observed that the wrongful taking is not confined to a taking by force. It is equally a conversion to obtain goods by false representations. For example: B purchased from A certain goods by means of false and fraudulent representations; and the goods are then delivered to B. B is liable to A in trover for conversion, without any demand being made for the goods before suit; B obtained the goods wrongfully. "Such a sale may be avoided by the vendor, and he may insist that no title passed to the vendee and in such case the seller may maintain replevin or trover for his goods." 28

* * *

*

10. For what property trover will lie.-Trover may be maintained for the conversion of every species of personal property, of value, which is the subject of private ownership. It can be maintained not only for such tangible property as furniture,29 cattle,30 implements and tools, merchandise,32 books, but also for a promissory note, bank bills

33

34

28 Thurston v. Blanchard, 22 Pick. 18 (Mass.). Compare Baird v. Howard, 51 Ohio St. 57, 36 N. E. 732. (The defendant purchased the goods from the plaintiff, while the latter was so intoxicated as not to know what he was doing.) See Cooley, Torts (Students' ed.), pp. 426, 427.

29 Gordon v. Harper, 7 T. R. 9 (Eng.); Howitt v. Estelle, 92 Ill. 218 (sewing machine); McPartland v. Read, 11 Allen 231 (Mass.); Sargent v. Gile, 8 N. H. 325.

30 Merz v. Chic. & N. W. R., 86 Minn. 33, 90 N. W. 7.

31 Frome v. Dennis, 45 N. J. L. 515 (plow).

32 Armory v. Delamirie, 1 Strange 505 (Eng.), (jewel); Farrant v. Thompson, 5 B. & Ald. 826 (Eng.), (machinery); Ashton v. Allen, 70 N. J. L. 117 (oats), LEADING ILLUSTRATIVE CASES.

33 Pease v. Smith, 61 N. Y. 477.

34 Smith v. Durham, 127 N. C. 417, 37 S. E. 473; Laverty v. Snethen, 68 N. Y. 522. Castle v. Corn Exchange Bank of England, 75 Hun 89 (N. Y.) (bill of exchange).

or money,

case

36

35 bonds, or valuable papers.37 In one 38 trover was maintained for the conversion of a letter, and in another 39 the action was for conversion of a box of negatives and photographic prints. 11. Nature of plaintiff's right in the property.— The courts not infrequently, in discussing the action of conversion, speak of the plaintiff's ownership or title; especially is this true in definitions of conversion. The implication that the plaintiff must be the owner, however, is not warranted. If the plaintiff is an owner, he may maintain the action, provided, of course, he can prove the conversion, and provided, further, that he had the possession or right of possession of the goods at the time of the conversion. But a less interest than that of absolute ownership will suffice. A lessee or bailee of property may maintain trover against one who wrongfully converts it; and, in fact, any person who has possession, or the right of possession, may maintain the action.

For example: A delivered goods to B under a contract by the terms of which B was to become the owner of them when the purchase price was fully paid; until then the goods were to remain the property of A, and there was a provision in the contract that the goods were not to be removed or sold by B until they were paid for. Before B had completed payment of the purchase price, he sold them to C,

35 De la Chaumette v. Bank of England, 2 B. & A. 385 (Eng.).

36 Donald v. Suckling, L. R. 1 Q. B. 585 (Eng.).

37 Swim v. Wilson, 90 Cal. 126 (shares of stock); Spooner v. Holmes, 102 Mass. 503 (coupon).

38 Teal v. Felton, 12 Howard 284 (U. S.).

39 Wamsley v. Atlas S. S. Co., 168 N. Y. 533, 61 N. E. 896.

who took possession of them. This was held a conversion by C (as it was also by B) and A was held entitled to maintain the action, though not in possession at the time of conversion.*

40

Again: A leases certain personal property to B, and the property is delivered into the possession of B under the lease. During the term of the lease the property is wrongfully taken from B by C by acts amounting to a conversion. B is entitled to maintain an action of trover, and A is not, though A is the owner of them. B has the possession and right of possession, even against A.41

12. Same subject-Possession or right of possession. A more accurate statement of the nature of the right which a plaintiff must prove, is contained in the opinion of the court in Raymond Syndicate v. Guttentag: "It is settled that to maintain tort under a declaration like the present one (trover) the plaintiff must show possession or the right to immediate possession." Even an "owner of chattels

42

48

could not maintain trover for their conversion unless when the acts complained of were done he had possession or right to immediate possession"; 43 and if the plaintiff can show either, he may maintain the action against a wrongdoer, whatever may be his right to the possession as to other persons.

In Armory v. Delamirie11 the plaintiff, a chimney

40 Carter v. Kingman, 103 Mass. 517.

41 Gordon v. Harper, 7 T. R. 9 (Eng.); Raymond Syndicate v. Guttentag, 177 Mass. 562; Stowell v. Otis, 71 N. Y. 36; Bartlett v. Hoyt, 29 N. H. 317.

42 177 Mass. 562.

43 Raymond Syndicate v. Guttentag, 177 Mass. 562,

441 Strange 505 (Eng.).

sweeper's boy, found a jewel and carried it to the defendant, a jeweler, who took out the stones and gave back the socket, refusing to give up the stones upon demand. The court held that the plaintiff had a right of possession, as against the defendant, and could maintain trover, though obviously the plaintiff had no title to the jewel as against the owner who had lost it. In Anderson v. Gouldberg, 45 which was an action of trover for the value of certain logs, the defense was that the plaintiff had obtained the logs by trespassing on the land of a third person, and that he had no title to them. The court held this was no defense. Mr. Justice Miller said: "One who has acquired the possession of property, whether by finding, bailment, or by mere tort, has a right to retain that possession as against a mere wrongdoer who is a stranger to the property. Any other rule would lead to an endless series of unlawful seizures and reprisals in every case where property had once passed out of the possession of the rightful owner.

47

9946

The cases of McAvoy v. Medina 7 and Bridges v. Hawkesworth 48 are excellent illustrations of the rule under discussion. In the former case the plaintiff, a customer in the defendant's barber-shop, found a purse on a table in the shop under circumstances indicating that another customer had left it there. The plaintiff delivered the purse to the defendant, tell

45 51 Minn. 294, 53 N. W. 636.

46 See also Averill v. Chadwick, 153 Mass. 171; Stonebridge v. Perkins, 141 N. Y. 1, 5, 35 N. E. 980; Stevens v. Gordon, 87 Me. 564, 33 Atl. 27. But compare Boyce v. Williams, 84 N. C. 275.

47 11 Allen 548 (Mass.).

48 21 L. J., Q. B. 75 (Eng.).

ing him to return it to the owner if he called for it. No one having claimed the purse, the plaintiff demanded it of the defendant, who refused to deliver it up. In an action of trover, it was held the plaintiff could not recover. The facts in Bridges v. Hawkesworth were similar, except that the property, a parcel containing bank-bills, was found on the floor of the defendant's shop by the plaintiff. There was the same delivery to the defendant, non-claim by the owner, and refusal to deliver up to the plaintiff on demand. This was held to be a conversion. The two cases, however, are consistent. In the McAvoy case, the court held that the possession of the purse and right of possession, except as to the owner, was in the shop-keeper, the reasoning being that, inasmuch as the purse was on the table, it was not lost, but had been placed there by the owner, thus placing it in the possession of the shop-keeper. In the Bridges case, the parcel was lost property, and the plaintiff was the finder, and hence entitled to maintain his action under the rule laid down in the case of Armory v. Delamirie.49

These are cases where either of two persons may maintain trover for the same wrongful conversion, that is to say, one may have the possession and the other the right of possession. For example: If A entrusts B with personal property under such circumstances that A is entitled to reclaim the goods at any time, and C wrongfully takes the goods from B, either A or B may maintain trover for the conversion. B has possession, which is good as against 491 Strange 505 (Eng.).