Jesse French Piano & Organ Co. v. Johnston

142 Ala. 419 | Ala. | 1904

ANDERSON, J.

This was an action of trover for the conversion of a piano, and the case was tried by the judge without a jury and judgment was rendered in favor of the plaintiff for $75.00. The evidence establishes the ownership of the plaintiffs to the property and that defendant acquired possession thereof through their servant, and the sole question presented for review is, was thorp such a demand and refusal as would make the defendant a tort feasor and guilty of a conversion?

All conversions are divided into four distinct classes, “1st; by a wrongful taking, 2nd; by an illegal assumption, 3rd; by an illegal user or misuser, and 4th; by a wrongful' detention.” In the three first named classes, there is no necessity for a demand and refusal, as the evidence .arising from the acts of the defendant is sufficient to prove the conversion. In the latter class alone is such evidence of demand and refusal to be required, as the detention of a chattel furnishes no evidence o'f a disposition to convert to the holder’s own use, or to divest the true owner of his property.” — Strauss & Sons v. Schwab, et al., 104 Ala. 669; Butler v. Jones, 80 Ala. 436; Bolling v. Kirby & Bro., 90 Ala. 215; S. C. 24 Am. St. Rep. 789; and note; Moore v. Refrigerator Co., 128 Ala. 621; 2 Greenleaf on Evidence, 644.

In other words, the proof should show that the demand was made by one, a delivery to whom would relieve the defendant of any liability to the owner. The burden is on the plaintiff to establish a conversion and when it is based on a demand and refusal, the proof should show that demand was made by one who had authority to make it. The demand in this case was made by one, Stowers,- first for E. E. Forbes and then for the plaintiffs and there was no proof that Stowers had authority to make the demand either from plaintiffs or Forbes, although plaintiffs did authorize E. E. Forbes to get it. We do not think .that we can presume the authority of Stowers simply because he brought the suit for the plaintiffs, as the bringing of the suit does not establish an authority for doing things prior thereto, and in this case the witness does not testify that he was the attorney or that he was acting in that capacity at the time of the demand.

Reversed and remanded.

McClellan, C. J., Tyson and Simpson, J.J., concurring.