plaintiff has demanded the property from the defendant and that the latter has refused to deliver

it

up; in other words, whether evidence of a demand and refusal is requisite to the plaintiff's case.

It has already been observed that conversion consists in a wrongful exercise of dominion over the personal property of another, and it is quite immaterial by what evidence such acts of dominion are established; once it is proved, by whatever legal evidence, there is a liability on the part of the defendant to respond in damages,—that is to say, it is not necessary to prove a demand and refusal, if conversion can otherwise be shown.67

The evidence of demand for the goods and an absolute refusal to deliver them is, however, evidence of dominion over the goods by the defendant, and if the demand for them by the plaintiff is based upon a right to the immediate possession of the goods, a wrongful refusal by the defendant to deliver them up establishes a conversion irrespective of any other facts.

The true significance, then, of proof of a demand and refusal is that it is evidence, but only evidence of conversion; if the conversion can be proved by other evidence, as by a wrongful taking, or by a sale of the goods by the defendant, or by evidence of a destruction 69 of them by him, the plaintiff may

68

67 Crampton v. Valido Marble Co., 60 Vt. 291, 15 Atl. 153, LEADING ILLUSTRATIVE CASES. Dixie v. Harrison, 50 So. 284 (Ala.); Howitt v. Estelle, 92 Ill. 218.

68 Dixie v. Harrison, 50 So. 284 (Ala.); Crampton v. Valido Marble Co., 60 Vt. 291, LEADING ILLUStrative Cases.

69 Gilmore v. Newton, 9 Allen 171 (Mass.); McPheters v. Page, 83 Me. 234, 22 Atl. 101.

maintain trover although he has not demanded the goods from the defendant before suit. For example: The defendant purchases and takes possession of goods from A, and subsequently re-sells them, supposing A to be the owner. In fact, the goods belong to B, who sues the defendant in trover without previously demanding that the goods be delivered up. B may maintain his action.70 Some of the Courts have held, however, that if, in the case supposed, the defendant, after receiving the goods, had exercised no distinct act of ownership (as, for example, by re-sale) there must be a demand and refusal, if the defendant bought innocently." The weight of authority is to the effect that a mere assumption of ownership by the defendant is a conversion.72

Rightful taking. Where the taking is rightful, as by a bailment, generally speaking the plaintiff must prove a demand and a refusal to deliver, for the reason that, if nothing else appears, the defendant's acts are consistent with recognition of the plaintiff's rights; though even in cases of rightful taking, if the defendant, after notice of the plaintiff's rights and regardless of them, exercises acts of dominion inconsistent therewith, he is liable in conversion without any demand and refusal. For example: A

70 Pease v. Smith, 61 N. Y. 477; Crampton v. Valido Marble Co., 60 Vt. 291, LEADING ILLUSTRATIVE CASES; Gilmore v. Newton, 9 Allen 171 (Mass.) ; Galvin v. Bacon, 11 Me. 28; Trudo v. Anderson, 10 Mich. 357; Bane v. Detrick, 52 Ill. 19; Surles v. Sweeney, 11 Oreg. 21.

71 Pease v. Smith, 61 N. Y. 477; Parker v. Middlebrook, 24 Conn. 207; Burkhalter v. Mitchell, 27 S. Ca. 240. Compare Ely v. Ehle, 3 N. Y. 506.

72 Cases cited in note 70, and Scott v. Hodges, 62 Ala. 337; Sims v. James, 62 Ga. 260; Rosum v. Hodges, 1 S. Dak. 308, in which the authori ties are collected. Rogers v. Dutton, 182 Mass. 187.

73

delivers goods to B, a carrier, for transportation, and B fails to deliver them. This is not sufficient evidence of conversion, though should A demand the goods of B and the latter without excuse refuse to deliver them, a conversion is established.74

But if, in the case supposed, B should sell the'goods or should destroy them, or use them, a conversion would be made out, without any demand. So if the carrier delivers the goods to the wrong person, this constitutes an act of conversion and renders the carrier liable without proof of demand.76

16. Same subject-Qualified refusal.-Demand and refusal are only prima facie evidence of conversion," and it is open to the defendant to explain that the refusal was justifiable.

It is well settled, for example, that if the refusal was due to inability to deliver, because the defendant did not have possession at the time of the demands or because the goods had been destroyed without fault of the defendant;79 or if it be shown

73 Crampton v. Valido Marble Co., 60 Vt. 291, LEADING ILLUSTRATIVE CASES.

74 Atch., Topeka & Santa Fe R. R. v. Jordan Co., 67 Kan. 86, 72 Pac. 533. 75 Castle v. Corn Exchange Bank, 75 Hun 89 (N. Y.), opinion of Mr. Justice O'Brien; Atch., Topeka & Santa Fe R. R. v. Jordan Co., 67 Kan. 86, 72 Pac. 533; Dench v. Walker, 14 Mass. 500 (adulteration of four hogsheads of rum by defendant, a carrier); Fouldes v. Willoughby, 8 M. & W. 540 (Eng.), LEADING ILLUSTRATIVE CASES.

76 Edmunds v. Merchants Despatch Co., 135 Mass. 283, LEADING ILLUSTRATIVE CASES; Hanna v. Flint, 14 Cal. 73; Indianapolis, etc., R. Co. v. Herndon, 81 Ill. 143; Devereux v. Barclay, 2 B. & Ald. 702 (Eng.). Compare Crouch v. Great Northern Co., 11 Exch. 742, 757 (Eng.), Martin, B. 77 Singer Mfg. Co. v. King, 14 R. I. 511; Cooley, Torts (Students' ed.), pp. 431-432.

78 Frome v. Dennis, 45 N. J. L. 515.

79 Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492; Cooley, Torts (Students' ed.), pp. 431-432, and examples.

that the defendant was merely acting as agent of another, and desired opportunity to consult his principal;80 or that the refusal was conditional or qualified, e. g., until the plaintiff should establish his right,81 refusal under such circumstances to comply with the demand is not sufficient evidence of a conversion.

So the refusal to deliver to the plaintiff goods which are at the time in the possession of a third person over whom the defendant has no more control than the plaintiff has, is not sufficient evidence of conversion.82 Nor is it sufficient if a carrier refuses to deliver where the goods have been attached by a third person under lawful process."

Same underlying principle. The whole question of the necessity of proof of demand and refusal is well summed up by Mr. Justice O'Brien in Castle v. Corn Exchange Bank.84 "The principle underlying these different instances of when conversion will lie is the same in all, requiring that before an action for conversion can be maintained the person sought to be held shall, either by his own act or the act of the owner of the property, be placed in the wrong." In this case the defendant was rightfully in possession of a draft for collection; it was

80 Burroughes v. Bayne, 5 H. & N. 296 (Eng.), LEADING ILLUSTRATIVE CASES; Alexander v. Southey, 5 B. & Ald. 247 (Eng.); Vaughan v. Watt, 6 M. & W. 492 (Eng.); Sutton v. Great Northern R. R., 99 Minn. 376, 109 N. W. 815; Merz v. Chic. & N. W. R. R., 86 Minn. 33, 90 N. W. 7; Sargent v. Gile, 8 N. H. 325, LEADING ILLUSTRATIVE CASES.

81 Singer Mfg. Co. v. King, 14 R. I. 511.

82 Dozier v. Pillot, 79 Tex. 224, 14 S. W. 1027.

83 Hett v. B. & M. R. R., 69 N. H. 139, 44 Atl. 910.

84 75 Hun 89 (N. Y.).

found that the defendant had exercised no act of dominion over the draft, inconsistent with the owner's rights, and that there had been no demand for it by the owner or by anyone having authority from him. It was accordingly held that the defendant was not liable in an action of trover for the conversion of the draft.

17. Vesting of title of property converted.-Inasmuch as the plaintiff in trover sues for and, generally speaking, recovers judgment for the value of the property,85 at some point of time, between the act of conversion and final satisfaction of the judgment by the defendant, title to the goods ought to vest in the defendant; the plaintiff ought not to be allowed the value of the goods and still be able to reclaim the goods themselves. At common law the question was one of election, the plaintiff having the right to replevy the goods or to waive the wrong and sue for the value, and if he chose the latter course and pursued the suit to a judgment, his election to treat the goods as the defendant's and to recover the value of them was made.8

86

85 For the general rule of damages in trover, see Greenfield Bank v. Leavitt, 17 Pick. 1 (Mass.); Spooner v. Manchester, 133 Mass. 270; Crampton v. Valido Marble Co., 60 Vt. 291, LEADING ILLUSTRATIVE CASES; Cooper v. Chitty, 1 Burr. 20 (Eng.); Austin v. Vanderbilt, 48 Oreg. 206, 85 Pac. 519. Where defendant has a special property in, or lien on the goods, see Donald v. Suckling, L. R. 1 Q. B. 585 (Eng.), opinion of Shee, J.; Spencer v. Vance, 57 Mo. 427. Cooley, Torts (Students' ed.), pp. 435, 436, and cases. As to effect of a return, or offer to return the goods, see Miller v. Hyde, 161 Mass. 472, 37 N. E. 760, LEADING ILLUSTRATIVE CASES; Cooley, Torts (Students' ed.), § 239, and cases cited. Burdick, Torts, pp. 363, 364, and cases cited.

8G See dissenting opinion of Mr. Justice Holmes in Miller v. Hyde, 161 Mass. 472, 37 N. E. 760, LEADING ILLUSTRATIVE CASES, and authorities therein cited.