| Mass. | Mar 2, 1883
We think the substantial truth of the exceptions presented has been established, and that the matters which the commissioner has found should be stricken out or inserted aré immaterial. The exceptions proved do not in our view differ materially from the exceptions which the presiding justice was willing to allow.
The first ruling excepted to is, “ that the plaintiffs could recover on their declarations only for the glass and the lettering thereon.” The declarations were for the conversion of “a permanent sign bearing the name of the plaintiff, placed in an advertising case in the post-office room,” &c. In the construction of pleadings it' may sometimes be necessary for the court to consider the subject matter as it appears in evidence, and if, when applied to the subject matter, the meaning of the pleadings is doubtful, it is the duty of the party pleading to ask leave to amend them so that the meaning may be made clear. The declarations are for the conversion of a sign placed in a case, and, as applied to the evidence, might well be held to include only the glass, which, with the lettering thereon, was placed in the case, and not to include any part of the case itself.
The remaining exception is to the ruling of the court that there was no evidence of a conversion of the glass plates. There was evidence that the defendants, under a claim of property in the advertising case, removed the glass plates from it and placed them on the corner of a counter in the post-office room, where they were found by one Vaughan, whose place of business was in this room, and they have been since kept by him in a closet “ without instructions from any one.”
It does not distinctly appear in whose custody this case was, after it was placed in the post-office room, but, so far as appears, it was in the custody of Vaughan, who it seems acted for one of the plaintiffs in forbidding the defendants to remove it. Ho evidence appears that the defendants claimed any property in the glass plates. It is not necessary to consider what were the rights of property which each plaintiff had in the advertising
The question here presented is of an alleged wrongful removal of the glass plates from the case by the defendants, under a claim of owning the case and having a right to take it down and carry it away. There was evidence that Perkins retained no interest in the case, and therefore none could be taken and sold on an execution against him, and therefore the defendants had no right, title or interest in the case. For the purpose of deciding the question, of law presented, it must therefore be assumed that the defendants had no right to take down the case and carry it away, and that the removal by them of the glass plates from the case was wrongful. It is contended that this wrongful removal of the plates from the case was a conversion, because it is an exercise of dominion over them inconsistent with the rights of the plaintiffs. But the dominion which the defendants exercised in removing the plates from the case was exercised, not by virtue of any claim of property in the plates, or of any right of possession or control over the plates, but by virtue of a claim of a right of property in the ease with which the plates were connected, and there is no evidence recited which would have warranted the jury in finding that the defendants removed the plates from the case for any other purpose than that of separating the property of the plaintiffs from the case which the defendants claimed to own, that they might take and carry away only the property they claimed. Such a wrongful intermeddling with plates, we think, does not amount to a conversion. There was no intent to deprive the plaintiffs of their property in, or of their rights of possession over, the plates, and no actual deprivation. The removal was incidental to the taking and carrying away of the case, and the plates continued in the custody of the person who, so far as appears, was in possession of the room in which the case was placed, and had the custody of the case. The evidence of a Conversion is no stronger than if it proved that a stranger without right had taken the plates from the case and left both in the room. This would be a trespass, but not a conversion. The want of knowledge of some of the plaintiffs that the plates were left with Vaughan is immaterial, if he were the person who was in possession of