Or against a carrier of liquor or his servant for an adulteration of it. flench v. Walker, 14 Mass. 500 (1780).
Or against the hirer or bailee of a horse for driving it a greater distance than is agreed, or in a differcut direction. Massachusetts: Wheelock v. Wheel-right, 5 Mass. 104 (1809); Homer v, Thwing, 3 Pick. (Mass.) 492 (1826); notch v. Hawes, 12 Pick. (Mass.) 186, 22 Am.Dee. 414 (1831); Lucas v. Trumbull, 15 Gray (Mass.) 306 (1860); Hall v. Corcoran, 107 Mass. 251, 9 Azn.Rep. 30 (1871); Pcrham v. Coney, 117 Mass. 102 (1875); MIchigan: Fisher v. Kyle, 27 Mieb. 454 (1874); Euggles v. Pay, 31 Mich. 141 (1875); West Virginia: Carney -cc Itease, 00 W.Va. 676, 55 SE. 729 (1906).
15, English: Ross v. Johnson, 5 Burr. 2825, 08 Bug.
Rep. 453; Severin v. Keppel, 4 Esp. 157, 170
Eng.Eep, 674 (1802); M’Combie V. DavIes, 6 East
540, 102 Engflep. 1393 (1805); flevereux V. Barclay,
(Mass.) 416 (1852); Dorman v. Kane, 5 Allen (Mass.)
38 (1862); Robinson v. Austin, 2 Gray (Mass.) 564
(1854); New Hampshire: Moses v. NorrIs, 4 N.H.
304 (1824); New York: Hawkins v, Hoffman, a
Hill (Nt) 586, 41 Arn.Dec. 767 (3844); Cairnes t
Dleeeker, 12 Johns. (N.Y.) 300 (1815); McMorris v.
Simpson, 21 Wend. (N.Y.) 610 (1839).
possession of both.’° But, if one tenant in common destroy the chattel, or commit an act which is equivalent thereto, as selling or otherwise disposing of it, his cotenant may maintain Trover for the value of his share)1
7C. 1 Cbitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms, c. II, Of the
38 Mich. 624 (1878); Baylis v. Cronkite, 39 Mich. 413
(1878); New York: Wilson v. Reed, 3 Johns. (N.Y.)
175 (1808); Hyde v. Stone, 9 Cow. (N.Y.) 230, IS
Am.Dee, 501 (1828); Hyde v. Stone, 7 Wend, (N.Y.)
354, 22 Am.Dec. 582 (1831); Mumford v. Mckay, S
Wend. (N.Y.) 442, 24 Am.Dec. 34 (1832); Nowlen v.
Colt, C Hill (N.Y.) 401, 41 Am.Dee. 756 (1844); North
Carolina: Lowthrop V. Smith, 2 N.C, 255 (1790);
Penasylvania: Browning v. Cover, 108 Pa. 595
Ia Channon v. Lush, 2 Lans. (N.Y.) 211 (1870), it was held that where the common property Is severable in its nature, like grain, so that the share of each tenant can be determined, each has the right to sever and take his share; and, If one tenant, who is in possessIon of the whole, refuses to allow his cotenant to take his share, this Is equivalent to a conversion. Fiquet v. Allison, 12 Mieb. 328, 86 Am.Dec. 54 (1864); McLaughlin -v. Saucy, 46 Mich. 219, 9 N. W. 256 (1881).
And In Needham v. Hill, 127 Mass. 133 (1879), It was held that, where one tenant In common of chattels so appropriates them to his own use as to render any future enjoyment of them by his eotenarit im
ACTION OF TROVER
(III) By a Wrongful Detention.—Again, the mere detention of goods, without right, may constitute a conversion.’8 In the cases thus far dealt with, proof of the wrongful act of the defendant is sufficient to establish a conversion, without showing a demand of the goods and a refusal to restore them.’9 possible, the latter may maintain Trover against him. See, also, Ripley v, Davis, 15 MIch, 75, 90 Am.
Dec. 262 (1866),
It has also been held that where a tenant in common of an indivisible chattel, holding possession thereof, claims sole ownership, and refuses to allow his cotenant to hold at all, the latter may maintain Trover. Bray v. Bray, 30 Mch. 479 (1874); Grove v. Wise, 39 Mich. 161 (1878). 78. As where a carrier or other bailee wrongfully refuses to deliver goods after a proper demand and
payment of any money that may be due. Northern
Transp. Co. of Ohio v. Selllck, 52 III. 249 (1866).
See, also, Massachusetts: ChamberlaIn v, Shaw, 18
Pick. (Mass,) 278, 29 Am.Dec. 586 (1886); Adams v.
Clark, 9 Cush. (Mass.) 215, 57 Am.Dec. 41 (1852);
Richardson v, RIce, 104 Mass. 150, 6 Am.Rep. 210
(1870); Michigan: Donlin v. MeQuade, 61 Mich. 275,
28 NW. 114 (1888); Monroe v. Whipple, 56 Mich.
516, 23 l’j.W. 202 (1885); New York: McLean v.
Walker, 10 Johns. (N.Y.) 471 (1818); Marshall v,
Davis, i Wend. (N.Y.) 109, 19 Am.Dec, 468 (1828):
Bryce v. Brooks, 26 Wend. (N.Y.) 367 (1841); Pennsylvania: Wheeler & Wilson Mfg. Co. v, Hell, 115
Pa. 487, 8 Atl. 610, 2 AmSt.Rep. 575 (1887).
‘9- English: BaldwIn v. Cole, 6 Mod. 212, 87 Eng. Rep, 964 (1705); Level! v. Martin, 4 Taunt. 801, 128 Eng.Rep. 545 (1813); Forsdiek v. Collins, 1 Stark. 173, 171 Eng.Rcp. 437 (1816); Alabama: Kyle v. Gray, 11 Ala. 233 (1847); Illinois: Gibbs v. Jones, 46 111. 319 (1868); Bane v. Detrick, 52 Ill. 19 (1869); Howltt v. Estelle, 92 Xli. 218 (1879); Hayes v. Massachusetts Mut. Life Ins. Co., 125 III. 626, 18 N.E. 322, I LR.A. 303 (1888); UnIon Stockyard & Transit Co.
v. Mallory Son & Zimmerman Co., 157 Ill, 554, 41 N. B. 888, 48 Am.St.Rep. 341 (1895); Massachusetts:
Hunt v. Holton, 13 Pick. (Mass.) 216 (1882); Gil-more v. Newton, 9 Allen (Mass.) 171, 85 Am.Dee. 749 (1864); Carter v. Klngman, 103 Mass. 517 (1870); Pierce v. BenjamIn, 14 PIck. (Mass.) 356, 25 Am. Dee. 396 (1883); Michigan: Hake v. Buelj, 50 Mich. 89, 14 N.W. 710 (1883); New Hampshire: Hyde v. Noble, 13 N.H. 494, 38 Am.Dec. 508 (1843); New
York: Tompkins v, Halle, 8 Wend. (N.Y.) 406 (1831); Bates v. Conkllng, 10 WeniL (N.Y.) 389 (1837); Con-nab v. Hale, 23 Wend. (N.Y.) 462 (1841); Pennsylvania: Horsefleld v. Cost, Add. (Pa) 152 (1798); South Carolina: Davis v, Duncan, 1 MeCord (S.C.) 213 (1821); VIrginia: Newman t Newsum, 1 Lelgh
In other cases, where the defendant had the rightful custody of the goods in the first instance, and his detention is relied upon as a conversion, it is essential for the plaintiff to show that he made a proper demand for the goods and that the defendant refused to deliver them to him,
A demand and refusal are necessary in all cases where the defendant became, in the first instance, lawfully possessed of the goods, and the plaintiff cannot show some distinct misuse or misappropriation.80 Thus, where goods are delivered under a contract, as to do something with them, and return them when completed, the mere omission to perform the contract is not in itself a conver(Va.) 80, 19 Am.Dec. 739 (1829); Vermont: Riford
v. Montgomery, 7 Vt. 418 (1835); Courtis v. Cane,
32 Vt. 232, 76 Am.Dec. 174 (1859); Grant v. King,
14 Vt, 367 (1842).
A demand, therefore, is not necessary where goods have been obtained by means of a fraudulent purchase, Illinois: Ryan v. Brant, 42 Ill. 78 (1866);
Massachusetts: Thurston v. Blanchard, 22 Pick. (Mass.) 18, 33 Am.Dec. 700 (1839); Stevens v. Austin, I Metc. (Mass.) 557 (1840); Riley v. Boston Water Power Co., 11 Cush- (Mass.) 11 (1853). Nor where possession was taken under a wrongful claim of ownership, Bruncr v. Dyball, 42 Ill. 34 (1866); nor where the defendant has sold the property and appropriated the proceeds, Howitt v. Estelle, 02 III. 218 (1870). See, also, Daniels v. Foster & Kiciser, 95 Ore. 502, 187 P. 627 (1920),
80. English: Wilbraham v. Snow, 2 Wms.Saund. 47 (e), 85 EngRep. 026 (1669); Edwards v. Ilooper, 11 Mees. & W. 306, 152 Eng.Rep. 844 (1843); Dcwell v. Moxon, 1 Taunt. 391, 127 Eng.Rep. 885 (1809); Jones v. Fort, 9 Barn. & C. 764, 109 Eng.Rep. 284 (1829); Connecticut: Thompson v. Rose, 16 Conn. 71, 41 Am. flee. 121 (1844); IllinoIs: Bruaer v. Dyball, 42 III. 34 (1866); Kentucky: Kennet v. Robinson, 2 J.J,Marsh. (Kyc) 84(1829); Maine: Carleton v. Lovejoy, 54 Me. 445 (1867); Massachusetts: Vincent v. Cornell, 13 Pick. (Mass.) 294, 23 Am.Dec. 683 (1882); Bond v. Ward, 7 Mass. 123, 5 Am.Dec, 28 (1810); Baker v, Lothrop, 155 Mass, 376, 29 N.E. 643 (1886); Michigan: Rodgers v. Brittaln, 39 MIch. 477 (1878); Clink
v. Gina, 90 Mich. 135, 51 N.W. 193 (1892); New
Hampshire: Farley v. Lincoln, 51 N.H. 580, 12 Am. Rep. 182 (1872); Cooper v, Newman, 45 N.H. 339 (1864) Pennsylvania~ Yenger v. wallace, 57 P& 365 (1868); South Carolina: Pettigru v. Sanders, 2 Bailey (S.C.) 549 (1831).
sian, and a demand and refusal must be shown to support Trover.8’
The demand must be made by the person who is the Owner of the Goods, General or Special, and entitled to the possession, or by his duly-authorized agent; ~ and it must be made upon the party who, at the time, has the possession of the goods by himself or his agent or servant, or the general controlling power over them.83 Where a demand is necessary, it must be made before the action is brought.8’ It need not be in any particular form) since its purpose is merely to give an opportunity to restore the goods. If it distinctly notifies the party who is the claimant and of the goods demanded, it is sufficient.85 It need not be made on the party
Si. Severin v. Keppe], 4 Esp. 156, 170 Eng.Rep. 674 (1802).
~Vhe,-e a carrier fails to deliver goods, there must be a demand and refusal before bringing Trover. English: Dewell v. Moxon, I Taunt. 391, 197 Eng.Rep. 885 (1809); New York: Brown v, Cook, 9 Johns. (N. V.) 361 (1812).
82. English: Mills v. Ball, 2 J3os. & P. 457, 126 Eng.
Rep, 1382 (1801); May v. Harvey, 13 East 197, 104
Eng.Rep. 345 (1811); Philips v. Robinson, 4 Bing.
106, 130 Eng.flep. 708 (1827); Maine: Hagar V.
Randall, 02 Mc. 439 (1873); Massachusetts: Delano
v. Curtis, 7 AlIen (Mass.) 470 (1863).
83. English: Nieoll v. Glennie, 1 M. & 3. 588, 103 Eng. flop. 220 (1813); Edwards v. looper, 11 M. & W. 366, 152 Eng.Rep. 844 (1843); Illinois: Sturges V. Keith, 57 111. 451, 11 Am-Rep. 28 (1870); Massachusetts: Viocent v. Cornell, 13 Pick. (Mass.) 294, 23 Am.Dec. 083 (1832); Bayley -V. Bryant, 24 Pick. (Mass). 198 (1839); Griswold v. Plumb, 13 Mass. 298 (1816); New Hampshire: Baker v. Beers, 64 N.H. 102, 6 Atl. 35 (1880); New York: Mitchell v. Witlianis, 4 Hill (N.Y.) 13 (1842); Vermont: Knapp V. Winchester, 11 Vt. 351 (1839).
81. English: Morris v. Pugh, 3 Burr. 1242, 97 Eng.
Rep. 811 (1701); Maine: Hagar v. Randall, 62 Me.
439 (1873); Michigan: Galrin v, Calvin Brass &
Iron Works, 81 Alich. 10, 45 NW. 654 (1890); New
Hampshire: White v. Demary, 2 N.H. 546 (1828);
New York: Storm v. Livingston, 6 Johns. (N.Y.) 44
(1810); Rhode Island: Cross v. Barber, 16 RI, 266,
15 Atl. 09 (1888).
personally. A demand in writing left at his house is sufficient.85 It must be absolute in its terms, and not qualified with conditions,83and it must not be excessive.85 Where a demand is necessary, there must
also be a refusaL8° Where there has been a refusal to restore the goods, it will not constitute a conversion unless the demand was properly made, as just explained, nor unless the party refusing has the power to deliver up the goods, and the circumstances are such that it is his duty to restore them. A refusal to deliver a thing upon demand is not of itself a conversion, but merely presumptive evidence of a conversion, and open to rebuttal by proof of facts which constitute a legal Justification or Excuse.9°
Forms of ActIon, 175 (16th Am. ed., by Perkins, Springfield 1876).
8~. Logan v, Houlditch, I lIsp. 22, 170 Eng.Rep. 268 (1793).
87. Rushworth v. Taylor, 12 L.J.Q.B. 80, 114 Eng. Rep. 674 (1842).
88- Abington v. Llpscombe, I Q.B. 776, 113 Eng. Rep. 1328 (1839).
89. Taylor v. Ilanlon, 103 Pa. 504 (1883).
90. 1 Chitty, Treatise on Pleading and Parties to Actions, with Precedents and Forms, c. II, Of the Forms of Action, 179 (16th Am. ed., by Perkins, Springfield 1876); English: Smith v. Young, I. Camp. 439, 170 tng.Rep. 1014 (1808); Green v, Dunn, 3 Camp. 215, 170 Eng.Rep. 1359 (1811); Connecticut: Clark v. Hale, 34 Coan. 398 (1867); 1111-nois: Race v. Chandler. 15 Ill.App. 532 (1884); Hill v. Belasco, II Ili.App. 194 (1885); Leman V. Best, 30 Ill.App. 323 (1888); Florida: Robinson v. Hartridge, 13 Fla, (Sup.Ct.) 501 (1870); Maine:
Hagar v. Randall, 62 Me. 439 (1873); Massachusetts: Johnson v. Coulllard, 4 AlIen (Mass.) 446 (1862); Gilmore r. Newton, 9 Allen (Mass.) 171, 85 Am.Dec. 749 (1864); Michigan: Daggett v. Davis, 53 Mich. 35, 18 N.W. 548, 51 Asn.lIep. 91 (1884); New Hampshire: Sargent v. GIle, 8 N.H. 325 (1836); New York: Hallenbake v, Fish, S Wend. (N.Y.) 547, 24 Am.Dec, 58 (1832); Pennsylvania: Harsefield V. Cost, Add. (Pa.) 152 (1793); Blakey v. Douglas, 6 AtI. (Pa-Sup.) 898 (1886); Vermont: Yale v. Saunders, 16 Vt. 243 (1844); Farrar v. Rollins, 37 Vt. 295 (1864).
An unconditional refusal to restore goods will amount to a conversion, though, for some particular reason,
85. 1 Chitty, Treatise on Pleading and Parties to Actions, -with Precedents and Forms, e. 11, Of the
ACTION OF TROVER
DECLARATION IN TROVER—ESSENTIAL
ALLEGATIONS: (4) TIlE DAMAGES
104. The Declaration must state the Damages which are the legal and natural consequence of the Conversion and the amount laid should cover the value of the goods and other actual Damages.
THE amount of Damages which is recoverable in this action is usually measured by the value of the goods at the time of conversion, with interest; °‘ but the plaintiff is en-tilled to include also any other loss that is its legal and naturai consequence, if not too remote, and the statement therefore should be large enough to cover the actual Damages inflicted.92 there may be a right to detain the goods, as where the party has a lien on them. The reason for the refusal, in such a case, should be stated. Kellogg s’. Holly, 29 III, 437 (1862).
One in the possession of property may always claim a lien upon It, or he may have the right to satisfy himself, as any prudent man would do, that the party demanding it is the real owner, or the proper agent to receive it. English: Mills v. Ball, 2 Bos. & P. 464, 126 Eng.Rep. 1382 (1801); Clark v. Chamber~ lain, 2 M. & W. 78, 150 Eng.Rep. 676 (1836); North
Carolina: Dowd v. Wadsworth, 13 N.C. 130, 18 Am. Dec. 567 (1829); Texas: Blankenship v. Berry, 28 Tot. 448 (1866),
91. Illinois: Hayes v. Massachusetts Mut. Life Ins, Co., 125 Ill. 632, 18 N.E. 322, 1 LEA, 303 (1888); North Carolina: Waller v. Bowling, 108 NC, 289, 12 S.E. 990, 12 L.R.A. 261 (1891). See, also, Leoncmi v. Post, 13 N.Y.S. 825 (1891).
The general rule that the plaintiff cannot recover a larger amount than he alleges to be due in his Declaration is, of course, applicable to Trover. I. H. Pitts & Son Co. v. Bank of Shiloh, 20 Ga.App. 143, 92 SE. 775 (1917).
In Trover, without any specific ad thtmnitm clause in the Declaration, but with a prayer that the defendant appear and answer, the amount of Damages asked for will be construed to be the alleged value of the property sued for. 1. H. Pitts & Son Co. v. Bank of Shiloh, 20 GtApp. 143, 92 SE, 775 (1917).
92. An Allegation that the Conversion was “to the great Damage” of the plaintiff, has been held sufficient [Mattlngly v. Darwin, 23 III. 618 (1860)], though this, It would seem, could only be because the statement bad been made elsewhere than In the ad damnun. clause, of the value of the goods, as
The defendant may lessen the amount of the recovery by showing, in Mitigation of Damages, that the plaintiff has himself recovered the property, or that it has been restored to him and accepted; but this is matter of Defense, and the Allegation of the Declaration must still be made.°3 As in other actions, the Form of Laying Damages will vary, depending on whether they are General or Special. The plaintiff might recover Special Damages in Trover, if they were laid in the Declaration. And the Jury might, on the Trial or Inquisition of Damages, by authority of a statute,94 give Damages in the nature of interest over and above the value of the goods at the time of the conversion or seizure, in an actions of Trover or Trespass de Bonis Asportatis.
STATUS UNDER MODERN CODES, PRACTICE ACTS AND RULES
105. While the Codes and Practice Acts have taken the labels from the various Common
Law Actions, and thereafter every action became in form a Special Action on the Case, the intrinsic differences between the actions as
known to the Common Law were not abolished. Hence, if a plaintiff sues, under the some averment was certainly necessary as a basis
In general, as to Damages in this action, see Iowa:
Hartley State Bank v. Mccorkell, 91 Iowa 660, 6 N.
42 Am.Dec. 500 (1844); Yale v. Saunders, 16 Vt. 243
(1844); Wisconsin: Cernaban v. Chrisler, 107 WIs.
645, 83 NW. 778 (1900).
94. 3 & 4 Win, IV, r, 42, 29; 73 Statutes at Large
Kofflor & Reppy ComLaw PIdg. H.S—9
Code, for the conversion of property, when the injury consisted of improper interference with the property of another, for which the remedy was Case, the action will still be dismissed.
THE Status of the Action of Trover under the Modern Law was clearly stated a few years after the adoption of the New York Code in 1848, in the case of Goulet v. AssetC?’.°~ In that case, the plaintiff, a mortgagee of chattels which had been sold under an execution against the mortgagor, brought the action, in the nature of Trover or Trespass, on the theory that the defendant had taken, sold and converted the goods to his own use, and that plaintiff was entitled to recover the vaiue of the goods. At the Trial, the Court instructed the Jury to assess the value of the goods, and to find a Verdict for the plaintiff for that value, subject to the opinion of the Court, with power to dismiss the Complaint. The Jury fixed the value of the property at $850.00 and the Court at General Term entered Judgment for this amount, whereupon the defendant appealed. In reversing the Judgment and granting a New Trial, SeMen,
3. declared: “Although the Code [of Procedure] has abolished °° all distinction be-
95. 22 N.Y. 225 (1860).
94. The advantage of an Action of Trover as opposed to an Action of Indebitatus Assumpsit for the collection of a debt, is clear. It gives or gave a right to hold to bait during the pendency of the action; and a right to imprisonment upon Execution, In addition to the usual resort to the property of the defendant. Salt Springs National Bank v. Wheeler, 43 N.Y. 492, S Am.Rep. 564 (1872).
See, also, Sectioa 6101 of the New York Civil Practice Law and Rules (1963), which provides for an order for the arrest of a defendant, other than a woman, as a provisional remedy, 1whcre there Is a cause of
tween the mere Forms of Action, and every Action is now in Form a Special Action on the Case, yet actions vary in their nature, and there are intrinsic differences between them which no law can abolish, It is impossible to make an action for a direct aggression upon the plaintiff’s rights, by taking and disposing of his property, the same thing, in substance or in principle, as wi action to recover for the consequential injury resulting from an improper interference with the property of another, in which he has a contingent or prospective interest. The mere Formal Differences between such Actions are abolished; the substantial Differences remain as before. The same proof, therefore, is required in each of these Two Kinds of Actions, as before the Code, and the same rule of Damages applies. Hence, in an action in which the plaintiff establishes a right to recover, upon the ground that the defendant has wrongfully converted property to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of
Damages still is, the value of the property; while in an action in which the plaintiff recovers, if at afl, upon the ground that the defendant has so conducted himself in the exercise of a legal right in respect to another’s property, as unnecessarily and improperly to reduce the value of a lien, which the plaintiff could only enforce at some subsequent day, the damages must, of course, depend upon the extent to which that lien has been unpaired.”