224 N.W. 643 | Mich. | 1929
Lead Opinion
Writers and courts have used language which tends to support the view of the learned trial judge, that defendant's acts of pasting the notices on the windshields and asserting title in himself were per se *341 a conversion. Indeed, it is somewhat surprising to find such a variety of holdings as to what constitutes conversion. Bacon, in his Abridgment (9 Bouvier's Ed. Bacon's Abridgment, p. 638), said:
"It is not requisite to show a manual taking of the thing in question, nor that the defendant applied it to his own use, to constitute a conversion; the assumption of a right to dispose of it, or the exercise of dominion over it, to the exclusion or in defiance of the plaintiff's right, is a conversion."
And Lord Ellenborough, in McCombie v. Davies, 6 East. 538, said:
"But taking the case higher up upon principle, I think that the defendant's acts amount to a conversion. According to Lord Holt in Baldwin v. Cole (a) (6 Mod. 212), the very assuming to oneself the property and right of disposing of another man's goods is a conversion; and certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into effect."
However, Mr. Greenleaf lays down this rule (2 Greenleaf on Evidence [16th Ed.], p. 588):
"The plaintiff must, in the next place, show that the defendant has converted the goods to his own use. A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff, under a claim of title, inconsistent with his own. It may therefore be either direct or constructive; and of course is proved either directly or by inference. Every unlawful taking, with intent to apply *342 the goods to the use of the taker, or of some other person than the owner, or having the effect of destroying or altering their nature, is a conversion. But if it does not interfere with the owner's dominion over the property, nor alter its condition, it is not."
And Mr. Bouvier defines "Trover" as follows (2 Bouvier's Law Dictionary [Rawle's 1st Ed.], p. 1142):
"A form of action which lies to recover damages against one who has, without right, converted to his own use goods or personal chattels in which the plaintiff has a general or special property."
In an early Alabama case (Freeman v. Scurlock,
"What is conversion? It is not confined to the unlawful turning, or applying of the personal goods of another, to the use of the taker. Nor is it necessary to constitute a conversion that the party should have had the exclusive control or dominion over the goods, or the actual manucaption of them."
But in an early Vermont case (Irish v. Cloyes Morse,
8 Vt. 30 [30 Am. Dec. 446), it was held:
"Any mere assertion of the right of dominion, is never permitted to go to the jury, in cases of trover, as evidence of a conversion, unless the assertion is made in view of the property, and in presence of the owner, and in order to deter him from exercising his just control over it."
The Rhode Island court holds (quoting from the syllabus inDonahue v. Shippee,
"To sustain an action of trover it is sufficient to show a wrongful assumption of dominion by the *343 defendant over the plaintiff's property, and in violation of the plaintiff's rights."
But the view of the North Carolina court is somewhat different, as expressed in the syllabus of University v. Bank,
"Conversion consists either in the appropriation of the thing to the party's own use; or in its destruction; or in exercising dominion over it in exclusion or defiance of the plaintiff's rights; or in withholding the possession from the plaintiff, under a claim of title, inconsistent with that of plaintiff, but it must be by acts, as bare words will not amount to a conversion."
Without quoting further from the cases from other jurisdictions, it may be said that the following cases are worthy of perusal: Davis v. Buffum,
From an examination of the cases, we are satisfied that the better rule is that while a manual possession of the property is not necessary to constitute a conversion, something more than the use of words is necessary. The words used may be evidence of a conversion, but are not conversion per se. This court has, in common with courts generally, held *344
that refusal to deliver possession pursuant to a lawful demand is not conversion, but only evidence of a conversion.Felcher v. McMillan,
"The action is trover, and, to sustain it, it was necessary that it be shown that some of this property was converted by the defendant. The fact that it was levied upon and advertised is not sufficient to establish a conversion. Some one must have taken it into possession, and deprived the plaintiffs of it, by removal or otherwise, under circumstances which show that the defendant was legally chargeable with such deprivation."
The defendant points to the fact, that in plaintiff's bill for foreclosure, it alleged that the property involved was then (February 15, 1921, the date the trial court held the conversion took place) in possession of plaintiff and one Tompkins, and that such bill was sworn to by plaintiff's president, and defendant insists that this required the court to direct a verdict in his favor. The plaintiff points to the fact that in defendant's bill in the Federal court, which he swore to, it alleged that he, defendant, was then in the actual possession of the property here involved, and plaintiff insists that this sustains the verdict directed. The statements in the pleadings are admission against interest and admissible as such; they may be explained and are not conclusive.Bullen v. Wakefield Crushed Stone Co.,
Without discussion, we will dispose of some minor questions. It was not error to permit plaintiff to amend by alleging a different date in its declaration as the date of conversion.Sayre v. Railway Co.,
The judgment must be reversed, and the case sent back for a new trial. Defendant will recover costs of this court.
NORTH, C.J., and FEAD, CLARK, POTTER, and SHARPE, JJ., concurred with FELLOWS, J.
Dissenting Opinion
There was a conversion by defendant when he exercised an unauthorized assumption of dominion, as trustee, over the property, to the exclusion of plaintiff. Every subsequent act of defendant related back to his first taking under asserted right to have possession to the exclusion of plaintiff. The acts of interference with the ownership and dominance maintained thereunder, until sale in culmination thereof, were continuous and inseparable. The notice of taking possession, attached to the automobiles and dominance exercised in defiance of plaintiff's rights, constituted a conversion. A very slight interference with the ownership of chattels is sufficient to constitute a conversion. It *346 was not necessary that defendant take manual possession of the automobiles. We must consider the act of defendant, as trustee, in the light of his power and duty to take possession of the chattels of the bankrupt and the obligation imposed upon all persons to refrain from interfering therewith. The notice of possession was sufficient to place in peril one interfering therewith. Defendant, as trustee in bankruptcy, was empowered to take possession of the personal property of the bankrupt. As such trustee he exercised the power, and gave notice of taking the automobiles and of dominion thereover, to the exclusion of plaintiff, except as he or the Federal court might permit.
The petition in bankruptcy operated as a caveat, that the estate of the bankrupt was to be regarded as in custodia legis, and when this was followed by appointment of defendant as trustee empowered to take possession of the estate of the bankrupt and he, as trustee, selected chattels claimed to belong to such estate and attached the notice of possession thereon and maintained right of dominion thereover to the exclusion of plaintiff, he was guilty of conversion if he was without right in the property.
The judgment should be affirmed.
*347McDONALD, J., did not sit.