| Mich. | May 16, 1890
Plaintiffs brought an action of trover in the Wayne circuit court for the conversion of a quantity of wooden patterns, brass patterns, and coupling boxes, used in their foundry business, which plaintiffs claim were of the value of $13,000. No question is made of the plaintiffs’ ownership of these goods, nor that they were at the time suit was brought in the possession of defendant. The single question is as to whether a proper demand was made by the plaintiffs before bringing suit. The circuit court determined that no legal demand was made,- and upon that ground directed a verdict for the defendant. The plaintiffs bring error.
The facts in the case are few and simple. The plaintiffs had been members and stockholders in the defendant corporation, but had withdrawn, and set up business for themselves in May, 1888. Some bad blood had existed between the parties, after their dissolution, but on December 15, 1888, all matters of dispute were settled, and the following agreement was entered into between them:
“The Galvin Bros., Thaddeus Galvin and John Galvin, on the one part, and the Galvin Brass & Iron Works, the People’s Savings Bank, and M. W. O’Brien, severally, on the other part, have settled in full all matters in difference between them, and all claims, counter-claims, and demands they have jointly or severally against each other, of every kind and description, the same as if such claims and demands were fully stated.
“It is understood that certain patterns belonging to Galvin Bros., that were not paid for by the Galvin Brass & Iron Works to Galvin Bros., will be delivered to Galvin Bros, on demand.
“M. W. O’Brien.
“ People’s Savings Bank,
“By M. W. O’Brien, Prest.
“Ti-ie Galvin Brass & Iron Works,
“By Francis F. Palms, Prest.”
It is conceded that the goods here sued for were the
On January 10 the plaintiffs wrote the following communication to the defendant:
“Galvin Brass & Iron Co.:
“You will please let bearer have all of our coupling patterns and car-boxes. Galvin Bros.
“Jan’y 10, 1889.”
And on the 11th they sent it by a drayman to the defendant’s warehouse. It is admitted that the letter was delivered to Mr. O’Brien, who was in _ charge of the defendant’s works at that time. Instead of delivering the .goods, he gave the drayman the following letter, which was delivered to the plaintiffs:
“Detroit, Mich., Jan. 11, 1889.
•“Galvin Bros.:
“On Sept. 20, ’88, we requested you to remove your patterns from our pattern room, and to expedite matters asked for a list, so that we may have them in readiness for you when you would send for them. Until such list is furnished, we will not have our time wasted looking up odd patterns when you feel disposed to send for them. We will also require you to pay storage on them before handing them over.
“Galvin Brass & Iron Works, “Per D. F. O’Brien.”
This letter of the defendant was a distinct refusal to deliver these goods to the - plaintiffs unless they would pay storage on them, and, if the defendant was not entitled to demand storage before turning the goods over, this was such a refusal as would be evidence of a conversion. Cooley, Torts, *448 et seq., and cases cited. The agreement executed on December 15 was evidence of a settlement in full of all matters of difference between the parties. If the defendant had charged for the storage of these goods, such charges were expressly settled and receipted for by that agreement. By that agreement the
Defendant claims in this Court that the letter written by plaintiffs dated January 10 was not a demand for this property, because they say the patterns owned by plaintiffs were of different kinds, including coupling patterns, valve patterns, steam-cock patterns, whistle patterns, bell patterns, and many others. This may bo so, but the defendant did not put its refusal to deliver upon this ground, but upon the ground that none of the property would be turned over until the storage charges were paid. The object of requiring a demand to be made before allowing an action of replevin or trover to be brought is that the defendant shall have the opportunity of surrendering the property, if he is willing to do so, without suit. If his conduct is such, or if he' does or says anything which clearly indicates to the plaintiff that he will not deliver the property, and that a demand would be useless, the demand will be waived. Certainly, after entering into the agreement of December 15, 1888, the defendant could make no claim for storage prior to that date. Whether it could demand storage after that date would depend, as we have said, upon whether the plaintiffs’ demand, made on January 11, was within a reasonable time. If it was, the defendant could make no-storage charges. Whether it was or not was a question for the jury. The case should have been submitted to the jury on this theory.
The judgment must be reversed, and a new trial granted.