45 N.J.L. 515 | N.J. | 1883
The opinion of the court was delivered by
In August, 1879, the plaintiff left his plow on’ the farm of one Cummins, with the latter’s consent, until he, the plaintiff, should come and take it away. In April, 1880, the farm passed into the possession of one Hibler,' the plow still being there. In June, 1880, the defendant, a neighboring farmer, borrowed the plow of Hibler to plow a field, supposing the plow to be Hibler’s, and having used it, in three- or four days returned it to Hibler, still supposing it to be his property. In the summer of 1881 the plaintiff informed the defendant that it was his plow which he had used, and demanded of him pay for the use and the return of the plow or its value, and the defendant not complying, the plaintiff brought an action of trover for the plow. The justice before whom the suit was instituted, and the Common Pleas on appeal, each gave judgment for the plaintiff for the value of the plow. The judgment of the Pleas is now before us on eertiorari, and the defendant below contends that the foregoing facts proved on the trial did not justify the judgment.
In this contention we agree with the defendant.
In order to maintain an action of trover, it is necessary to prove a conversion by the defendant of the plaintiff’s property. What will constitute a conversion is, I think, well summed up by Mr. Justice Depue in Woodside v. Adams, 11 Vroom 417, in these words : “To constitute a conversion of goods, there must be some repudiation by the defendant of the owner’s right, or some exercise of dominion over them by him Inconsistent with such right, or some act done which has the ’effect of destroying or changing the quality of the chattel.”
• This subject has quite recently received considerable discussion in the Exchequer Chamber and House of Lords of England, in Fowler v. Hollins, L. 11., 7 Q. B. 616, and L. R., 7 H. L. 757. The facts upon which the court finally settled
It is apparent, I think, from a perusal of these judgments, that every judge based his opinion of the defendant’s guilt on the question whether he had done any act which amounted to a repudiation of the plaintiff’s title, or to an exercise of dominion, i. e., ownership over the goods. Less than this would constitute a trespass, but not a conversion, so long as the character of the chattels remained unchanged.
In a very late case in Massachusetts, Spooner v. Manchester, 133 Mass. 270, a similar view is expressed. Field, J., there says: “ Conversion is based upon the idea of an assumption
To the same effect is Laverty v. Snethen, 68 N. Y. 522.
In the light of these authorities, the conduct of the defendant in the case at bar did not amount to a conversion of the plow. He received it for a temporary use only, and without any claim of right or dominion over it, but having a mere license from the possessor, revocable at once by either the possessor or the true owner. He surrendered it to the possessor from whom he had received it, without any intention of enlarging or changing his title, without any reference to anybody’s title, and doubtless would have as readily surrendered to the plaintiff upon his ownership being shown. Neither in the use nor in the surrender by the defendant does there appear any repudiation of the owner’s right, or any exercise of dominion inconsistent with such right. His acts may have constituted a trespass, but not a conversion.
This being so, his subsequent failure to deliver the plow to
The plaintiff contends that the evidence on the part, of the-defendant as to his conversation with Hibler at the time of borrowing the plow, was illegal. It was not, however. It being proper to show that the defendant came into possession of the plow, the declarations of himself and of the person from whom he received possession, cotemporaneous with the transfer and indicative of its character, were admissible as part of the res gestee. Luse v. Jones, 10 Vroom 707; Hunter v. State, 11 Vroom 495.
The judgment below should be reversed.