183 A. 690 | Conn. | 1936
The defendant Gibbs purchased a used automobile from the Colonial Credit Company under a conditional bill of sale which the Credit Company assigned to the defendant Park City Finance Company. Gibbs took possession of the car, made all payments due under the conditional bill of sale and was in possession of it when this action of replevin was brought. The engine in the car came from a Packard automobile owned by John Grier Hibben, which had been involved in a collision and sold by the executors of his estate. Ownership of this car passed to several persons by purchase and sale until it was bought by John Higgins. While the car was in his possession he also acquired another Packard car which had been stolen from Mr. and Mrs. Sherline and the title to which had been assigned by them to the plaintiff, it having paid to them the amount due under an insurance policy which covered the loss of the car by theft. After Higgins came into possession *190 of the two cars, the engine from the Hibben automobile was placed in the Sherline car and the resulting composite was then sold to the Colonial Credit Company. It thus appears that legal ownership of the engine in the car in Gibbs possession was in him and the Finance Company, unless lost under the rule of law advanced by the plaintiff which we shall later discuss, whereas legal ownership of the rest of the automobile was in the plaintiff. The plaintiff did not demand possession of the car before bringing the action.
The plaintiff contends that the engine in the car became so much an integral part of it that under the doctrine of accession replevin lay for the whole car. In these days when the various parts of an automobile are easily removed and replaced, or interchanged, often without materially affecting the structure of the car, that doctrine has its obvious limitations. Indeed, it easily lends itself to a reductio ad absurdum. Suppose a thief has stolen three automobiles of the same make and he constructs a car by taking the chassis from one, the engine from another and the body from the third; which of the owners of the stolen automobiles in such a case could claim the reconstructed car? In Tire Shop v. Peat,
In this case the trial court has found that the engine was taken out of the Sherline car and replaced with the engine from the Hibben car without any damage to the body or chassis of the former; and it is clear that the engine could now be taken out of the reconstructed car without damage to the body or the chassis. Of course the engine had very substantial value as compared to the value of the whole car. In Clark v. Wells,
In Bozeman Mortuary Asso. v. Fairchild,
Silsbury v. McCoon,
This conclusion has a material bearing upon the *194
defendants' claim that the plaintiff had no right to maintain this action without first making a demand for the delivery of the car. Demand and refusal are sometimes a prerequisite to the maintenance of an action of conversion. In general they constitute the proper evidence of a conversion where one has come rightfully into the possession of goods but are not necessary in case of a wrongful taking or a wrongful use of personal property, or of a wrongful exercise of dominion over it. Coleman v. Francis,
Whatever limitations there may be in the application of the rule, such a case as the one before us falls peculiarly within it. Demand implies a reasonable opportunity voluntarily to comply with it. The defendants were under a duty to surrender all of the car except the engine. They were entitled to have demand *195
made upon them before action brought that they might have the opportunity to remove the engine which they had the right to retain, and surrender the rest of the car. However, the making of a demand where the property in question has been stolen is not an element in the owner's cause of action to recover it but it is a protection which the law grants to the person in innocent possession of it. Hence the plaintiff in such case need not allege demand nor does the filing of a general denial, as was done in this case, raise the issue. See Harrison v. Clark,
There is error, the judgment is set aside and the case remanded to be proceeded with according to law.
In this opinion the other judges concurred.