| Mass. | May 25, 1896
As we understand the report, the court ruled, as matter of law, that the plaintiff’s conduct in using and letting the horses, and in appropriating to his own use what he received, constituted a conversion. We think that this was error, and that the question should have been left to the jury. The plaintiff was rightfully in possession under his lien, but the horses were not his, and he was bound to take due care of them. And there was evidence tending to show they needed exercise, and that it was better for them “ to use them some.” The plaintiff was not guilty of conversion unless he did something inconsistent with his right of lien. And to constitute a conversion, as matter of law, his acts must have amounted, intentionally or otherwise, to an appropriation of the horses on his part, or to a deprivation of the defendants of them. Spooner v. Manchester, 133 Mass. 270" court="Mass." date_filed="1882-09-07" href="https://app.midpage.ai/document/spooner-v-manchester-6420675?utm_source=webapp" opinion_id="6420675">133 Mass. 270. Spooner v. Holmes, 102 Mass. 503" court="Mass." date_filed="1869-10-15" href="https://app.midpage.ai/document/spooner-v-holmes-6415822?utm_source=webapp" opinion_id="6415822">102 Mass. 503.
If in using them in his business the plaintiff’s purpose was to give them necessary exercise, and the extent to which they were used was not unreasonable or greater than was required to keep them in proper condition, the fact that they were used in his business, and that he incidentally derived a benefit from using and letting them, would not necessarily constitute a conversion. We do not understand the statement in the report, that he appropriated to his own use the revenue which he received from the use of the horses, to mean that he refused to account for it, as he was bound to do. The fact that he received pleasure, ox-profit or advantage to his health, from using or driving them for exercise, would not of itself render his condqct tortious, if in so doing he used them as the horses of the defendants, and it would be for the jury to say, upon the whole evidence, whether he intended to convert the horses to his own use and did so, or whether the manner and extent to which and in which he used them were consistent with his right of lien and his duty to the defendants and in the discharge of it.