21 Minn. 2 | Minn. | 1874
There was evidence tending to show that, subsequent to the execution of the bill of sale, and the delivery of the property described therein, the plaintiff recognized the defendant’s ownership of the cigars in controversy, and that the defendant, with the knowledge and consent of the plaintiff, returned the cigars, as unsuitable, to the person from whom he had purchased them, not having previously paid for any portion of them. The plaintiff’s testimony tended to show a different state of facts. The court charged the jury, “that, if they find from the evidence, that the defendant took and carried away the cigars in the plaintiff’s complaint mentioned, and converted them
The action brought by the plaintiff is for the wrongful taking and conversion of his property by the defendant. If the taking and conversion was with the knowledge and •consent of the plaintiff, it was not wrongful; and, whatever may be the liability of the defendant, it cannot be in tort, nor can it be enforced under this complaint.
The jury might have been satisfied from the evidence that the taking of the cigars by the defendant was not wrongful, but with the consent of the plaintiff, given at the time they were returned, and subsequent to the execution of the bill of sale; yet, under the instruction given to them by the court, they were required to disregard that fact, and find for the plaintiff. TMs was erroneous, and requires us to grant a new trial.
Judgment reversed and a new trial ordered.
