41 Vt. 217 | Vt. | 1868
The opinion of the court was delivered by
The evidence in relation to the demand and refusal does not justify the charge of the court on the question of conversion. In the action of trover, a rightful demand and a wrongful refusal are in law a conversion. On trial there was a dispute as to the amount of property which the defendant had turned out and which the plaintiff had a right to demand, and upon the evidence the jury may have found the plaintiff entitled to no more of the property which the witness Bean demanded; than what the evidence on the part of the defendant tended to show had been turned out. But it appears that Bean, when he made the demand, on the occasion of serving the writ in this case, demanded also a great variety of other articles of property. If the jury found the amount of property which had been turned out, to be as the defendant claimed, then the demand as to the excess was not rightful. The mere fact, that Bean embraced in his demand of the property more property than he had a right to, would not justify
But even if Bean had said nothing which had the effect to excuse the defendant from complying with the demand by delivering so much of the property demanded, as the plaintiff had a right to, the defendant was entitled to a reasonable time to deliver the property, if there were no denial of the plaintiff’s right and no -refusal; and what would be a reasonable time, would depend in a measure upon the distance the property was from the place of demand. If the defendant refused absolutely to deliver that portion of the property demanded, which he claimed he never had turned out, as the evidence tended to show, and the jury should
For the reasons stated, the defendant is entitled to a new trial.
As the judgment is to be reversed, we have not considered the question made as to the adjudication of the county court granting, the certificate.
Judgment reversed, and new trial granted.