4 W. Va. 642 | W. Va. | 1871
There is do assignment of errors in this case, and the only questions that appear in the record are, the demurrer to the defendant’s two special pleas, and the overruling of the motion for a new trial, upon the ground that the verdict was contrary to the evidence.
It was not claimed in the argument here, that there was any error in sustaining the demurrer to the pleas; but it was insisted that the verdict was not sustained by the evidence. Hirst, because no conversion of the property was shown by the testimony. Second, because trover could not be maintained in the ease, inasmuch as it appeared by the evidence that the horse, for the conversion of which this suit was instituted, had been reclaimed by the plaintiff, and was in the possession of his agent at the time of the institution of this suit. And also for the reason, that neither the value of the horse, nor the damages sustained by the plaintiff, could be ascertained from the evidence in the case.
The proposition is too well established to admit of discussion, that the tortious, or unlawful taking of personal property and the exercise of ownership and dominion over it, against the consent of the owner is, in law, a conversion of the property for which trover will lie. 2 Tucker, 87-89; 9 Bacon’s Ab., 630-3; Prescott v. Wright, 6 Mass., 20; Pierce v. Benjamin, 14 Pick., 356; 6 Mod., 212; Clayt., 112; Wyatt v. Blades, 3 Camp., 396; 2 Hilliard on Torts, 96, 114-15.
It appears from the testimony, that the horse, now in question, was taken from the possession of the plaintiff, (then the owner) against his consent, and was found in the possession of the defendant shortly thereafter, who rode him off and exercised a dominion and acts of apparent ownership over him, against the consent of the plaintiff, and in defiance of his rights. This, according to the authorities, was a clear conversion of the property, and would consequently sustain an action of trover and conversion.
It would also seem to be equally well settled that the action may. be maintained, in the case of an unlawful taking
The remaining question is the amount of damages found by the jury.
The proofs show that the horse in question was purchased shorty before the taking by the defendant, for the sum of 350 dollars, and that a much higher -estimate was placed upon him by the plaintiff at the time of the conversion. Prom this, I think the jury might very properly imply that the price paid for the horse was the fair value of him at the time of the conversion by the defendant, and that being the measure of the plaintiff’s damages, (it appearing that the horse had been seriously injured, and, perhaps, rendered worthless after the conversion, and before he was placed in the custody of the agent of the plaintiff,) I think there was no error in the court sustaining the verdict. Hall v. Burgess, Gray, 12.
There being, in my view’, no error in the judgment complained of, it must be affirmed with costs and damages.
Judgment Amstrmed.
