| N.C. | Dec 5, 1827
Lead Opinion
Conversion is an act of ownership, exercised over the personal chattel of another, inconsistent with the owner's right. It must be an act; bare words will not do. Words, however, may qualify an act, and show its character. A refusal to deliver upon demand is not the conversion; but it is the possession afterwards which is qualified by the refusal, and shown to be adverse after the right to possess is put at an end by the demand of the owner. Putting up this horse for sale as the property of his intestate by the defendant, although he bid him in himself, is an unequivocal act showing the nature of his possession, and declaring it to be adverse to the right of the owner. A demand is not required to give the defendant an opportunity of avoiding a suit, by delivering up the property in dispute; but to put an end to the defendant's right to possess, which before might be lawful, as in the case of a finder or of the owner's bailee. The detention afterwards is the conversion. And if before the demand possession is wrongfully parted with, this is itself a conversion. Or the defendant may be concluded by his wrongful act from setting up as a defense his want of possession at the time of the demand.
There must be a new trial.
Addendum
Whether the sale by the plaintiff to the defendant's intestate was conditional or whether it was absolute, and time given to pay the purchase money, was properly left to the jury. As to the second question, relating to the sale of (308) the horse, which is relied on as a conversion: if the horse had been purchased by a third person, and the money paid to the defendant, or if the money had not been paid, it would have amounted to a conversion, as it would have been an exercise of ownership over him. As to this question, the fact that the defendant became the purchaser can make no difference; he thereby evinced his intention to become the owner.
It is said in Bacon's Abridg. (Trover B.) that every disposition of property as a man's own is a conversion. If one dispose of another's property for the benefit of a third person, this is a conversion. If a person intrusted with another's goods places them in the hands of a third person, contrary to orders, it is a conversion. Syds v. Hay, 4 Term, 260. Every unlawful intermeddling with the goods of another, and exercising acts *195 of ownership over them, is a conversion. I therefore think the rule for a new trial should be made absolute.
Addendum
It is not necessary to prove a demand and refusal, where the plaintiff can show an actual conversion. If a person purchase another's goods, from one having no right to sell them, and takes them into possession, it is assuming upon himself the property and right of disposing of another's goods, and amounts to a conversion. The defendant's possession and claim were adverse to the plaintiff's right; and the possessing himself of the horse under such circumstances constitutes the cause of action. There should be a new trial.
PER CURIAM. Judgment reversed, and a new trial granted.
Approved: Rhea v. Deaver,
(309)