43 Mich. 571 | Mich. | 1880
Busch sued plaintiff in error in trover for the conversion of a number of railroad ties. The case he made out on his own behalf was that parties employed as sub-contractors under Walton & Lacy, contractors to build the Caro branch of the Detroit & Bay City Bailroad, used 251 ties owned by Busch, and put them here and there among the other ties Used in forming the superstructure of the railway, spiking rails to them in the usual manner. He gave testimony tending to show that the ties could after that have been identified, and that they could be removed and others substituted without damage to the road. The ties, as he claimed, were used before June 12, 1878, and about that time he “notified the president of defendants of the fact.” The road was not delivered up to the company complete and ballasted until October or November, 1878, although used somewhat earlier. This suit was commenced in January, 1879. Before its commencement Busch made a demand of the ties on the president of the company.
Under the charge of the court below he was allowed to recover the value of the ties, the court holding that their use by the company after demand was a conversion.
If Busch had brought replevin when he discovered the disposition made of his ties without his consent, and before the delivery of the road to the company, the ques
The court should have directed that Busch could not recover. The judgment must be reversed with costs, and a new trial granted.