269 N.W. 842 | N.D. | 1936
This is an action for the conversion of 684.9 bushels of wheat which were stolen from the plaintiff and sold and delivered by the thieves to the defendant, whose manager purchased the grain without knowing that it was stolen. The theft and sale took place during the last part of December, 1932, and the first part of January, 1933, the delivery being made by one Moe. On May 14, 1934, the defendant delivered to plaintiff's attorney a statement of grain that had been hauled by Moe, being the grain which is involved in this *74 action. On September 5, 1934, the plaintiff served upon the defendant a demand to settle for the grain "by making restitution of the grain above described, or grain of like kind and quantity or of paying therefor at the current market price" with which demand the defendant refused to comply. The plaintiff promptly thereafter instituted this action and demanded judgment of the defendant for the value of the wheat as of the date of the demand. The wheat was worth about thirty cents a bushel when it was delivered to the elevator, and $1.03 a bushel when the demand was made. The trial court instructed the jury in effect that if it found that the defendant had converted the plaintiff's wheat that it should determine the value thereof on the date or dates of the purchase by the defendant, and that such value would represent the damages to which the plaintiff is entitled. The plaintiff contends that this is error and that the damage to which he is entitled should be measured by the value of the wheat as of the date of demand.
The measure of damages for the conversion of personal property is its value at the time of conversion, with interest thereon from that time, or if the action has been prosecuted with reasonable diligence, the highest market value between the time of conversion and the verdict without interest at the option of the injured party, and a fair compensation for the time and money properly expended in the pursuit of the property. Section 7168, Compiled Laws of 1913, First State Bank v. Osborne-McMillan Elevator Co.
The determination of this law suit depends upon when the conversion took place. The fact that a demand was made does not necessarily establish that conversion took place when the demand was refused. Demand and refusal do not constitute conversion, but proof thereof is merely evidence of conversion. More v. Western Grain Co.
It is well settled that an innocent purchaser can obtain no title to personal property from a thief, for the thief has no title and has nothing to convey. A person who purchases property from the possessor *75
thereof without ascertaining whether he has title thereto, makes the purchase at his peril and may be sued in conversion by the true owner. By taking possession of the property as the owner, the purchaser thereby exercises dominion and control over it inconsistent with and in denial of the rights of the owner, even though he acts in good faith. Good faith cannot be shown as a matter of defense in an action for conversion. Clapp v. Johnson,
In the case before us we have a unique situation in which the elevator company contends that it converted the wheat when it bought it, while the plaintiff asserts that conversion did not take place until demand was made which was one year and eight months after the sale. If a demand is necessary to establish conversion the plaintiff's contention is correct. On the other hand, if conversion took place when the purchase was made, the demand was superfluous and the plaintiff is only entitled to damages based upon the price as of the date of purchase. Both the better reasoning and the weight of authority support the rule that even though a purchaser be innocent, if he buys stolen property and asserts dominion over it as an owner, he thereby converts it and an action may be maintained against him by the true owner without demand. This rule is supported, in addition to the cases we have discussed, by the following: Velsian v. Lewis,
Affirmed.
BURKE, Ch. J., and NUESSLE, BURR and CHRISTIANSON, JJ., concur. *77