Hatch v. Kenny

| Mass. | Feb 25, 1886

C. Allen, J.

This case turns on a very narrow question. Relying on the general proposition, that, in order to maintain an action of tort for the conversion of property, the plaintiff must have a right of immediate possession, the defendant contends that the plaintiff, though having a good title, had not a right to the immediate possession at the time of the alleged conversion, because at that time the officer, Farr, had the exclusive right of possession under the writ of replevin in favor of the plaintiff. Without seeking for other answers to this ground of contention, there are two things to be noted.

1. The replevin bond was approved on the same day when the defendant forcibly took the goods and refused to give them up; but whether before or after such refusal does not appear. It is conceded that the plaintiff’s right of immediate possession would accrue upon the approval of the bond. It does not appear by the bill of exceptions that the precise point now relied on by the defendant was brought to the attention of the presiding judge. It would seem probable, if it had been, that the testimony would have been more specific, or would have been reported more in detail. However this may be, the defendant is the excepting party, and his bill of exceptions does not show that the jury might not properly have found that the bond was approved before the defendant’s refusal to give up the goods. If they so found, the defendant’s argument fails.

2. The plaintiff’s action for the conversion was not brought until the day after the events above referred to. At that time, he clearly had a right to the immediate possession; and the only other question was whether the jury would be warranted in finding a conversion for which the plaintiff could sue. There was evidence tending to show that, on the day when the bond was approved, one day before the present action was brought, the officer who was serving the writ of replevin demanded the goods of the defendant, in the plaintiff’s presence, and that the defendant replied: “ They were forced from me; I have forced them back, and am going to keep them.” The defendant was aware of the relation of the plaintiff to the property, and of his suit in replevin. This evidence would warrant the jury in finding a conversion by the defendant at that time, for which the plaintiff might sue as soon as he should become entitled to the immediate possession of the property. The case on this point falls precisely within the principle of Delano v. Curtis, 7 Allen, 470, 475, and Pattison v. Robinson, 5 M. & S. 105. A conversion may be shown, under such circumstances, by a refusal to deliver to a person who, at the time of the refusal, had a right to make a demand; and a new demand was not necessary, as the jury might well assume that the defendant meant to refuse to deliver the goods either to the officer or to the plaintiff.

The judge properly declined to rule that the action could not be maintained.

Exceptions overruled.