153 Ky. 20 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
This suit for trover and conversion by the appellee against the appellant arose out of tbe following facts: By a written contract of July 26, 1909, The Cincinnati Iron & Steel Company sold to Joseph Goldberger, who was then doing business in Cincinnati under tbe name of Joseph Goldberger Iron Company, a shear for cutting all kinds of iron and steel. The machine was to be paid for in installments as the work progressed; tbe first payment
“$4,800. Cincinnati, November 9, 1909.
“Four months after date we promise to pay to the order of the Cincinnati Iron & Steel Company, four thousand and eight hundred dollars, at five per cent. Value received. Jos. Goldberger Iron Co.
“Jos. Goldberger.
“No. 102, due March 9, 1910.”
Some time in January, 1910, Goldberger began the formation of a corporation to take over his business and to be known as “The Joseph Goldberger Iron Company.” The incorporation was effected about February 8, 1910. when the charter was applied for, and it was actually engaged in business as early as February 19, 1910.
Joseph Goldberger was the owner of and used in his business certain real estate in Cincinnati, adjoining the Pennsylvania station, on East Front Street, known as the “old waterworks plant.’5 He sold his business to the new corporation, including the real estate and all the assets of the former business, such as a leasehold, stock, scrap-iron and steel on hand, and all the machinery. He became the president of the new corporation, owning practically all of its stock, and remained in complete charge thereof until it failed and went into the hands of a receiver on October 6, 1911. It is contended by appellant that Goldberger did not sell the shear in controversy to the new corporation, although he sold and turned over to it all the motors, pulleys and machinery connected with the shear. It is reasonably certain, however, from the proof, that the corporation used the machine from about February 19th, and perhaps earlier, until its failure; and during
For answer, “The Joseph Goldberger Iron Company” presented the following defenses: (1) there could not have been a conversion on February 3, 1910, as alleged in the petition, since the corporation was not organized and was not capable of doing any corporate act until February 8th, 1910; (2) the steel company could not re.cover because it failed to show a demand for the return of the machine and a refusal on the part of the defendant, both being necessary, according to appellant’s contention, to establish a conversion; (3) that appellee failed to show that it was actually possessed of the shear alleged to have been converted, at the time of the conversion, or that it had the right to the immediate possession thereof; and (4) that in electing to sue Goldberger on the note, the steel company is bound by its election of that -remedy and is estopped from suing the corporation for conversion which was based upon the inconsistent claim that the title to the shear remained in the steel com.pany; and that by suing Goldberger it had waived its •right to take the property back. This last defense is based upon the theory that the suit against Goldberger in Ohio necessarily conceded that the title to the machine had passed to Goldberger. We will notice these several grounds of defense in the order stated.
“In the case of a conversion by wrongfully taking it is not necessary to prove a demand and refusal; and the intent of the party is immaterial; and if defendant acted under the supposition that he was justified in what he did, or as the servant of, and for the benefit of, another person, he will be equally liable to this action.” 1 Chitty’s Pleading, 153. 1
The reason for the rule is that while a demand and refusal may afford satisfactory evidence of a conversion, they do not constitute the only evidence by which a conversion may be proved, since any wrongful exercise or dominion over chattels to the exclusion of the rights of the owner, or a withholding of them from his possession under a claim inconsistent with his rights, constitutes a conversion. Newcomb-Buchanan Co. v. Baskett, 14 Bush, 658. This general rule has been fully recognized in Ohio where these transactions were had, in B. O. R. R. Co. v. O’Donnell, 49 Ohio St., 489; 21 L. R. A., 117; 34 Am. St. Rep., 759, where the Supreme Court of Ohio said:
*24 . “It is contended that, where the property of one person has lawfully come into the possession of another, a refusal by the latter to deliver it to the owner on his demand is necessary to constitute a conversion of it, and therefore the petition, in an action for its conversion, must contain an allegation of such demand and refusal. The allegation is not essential. A refusal to deliver the property on demand of the owner may show such an assumption of ownership or control* of it as to afford satisfactory evidence of a conversion, but it is only evidence. The ultimate fact to be pleaded is the conversion; and in actions of that nature a petition with proper allegations of plaintiff’s ownership of the property and of its value, and which avers that the defendant converted it to his own use, states a cause of action.” To the same effect see Doggett v. Gray, 110 Cal., 169; Buntin v. Pritchett, 85 Ind., 247; Kendall v. Duluth, 64 Minn., 295; Norman v. Horn, 36 Mo. App., 419; Schmidt v. Garfield Nat. Bank, 64 Hun., 298, affirmed in 138 N. Y., 631; Johnson v. Ashland Lumber Co., 45 Wis., 119. The appellee’s petition fully complies with these requirements of good pleading.
We attach no importance to the contention of appellant that trover did not lie for conversion of the machine because it was attached to the freehold, since it was a trade-fixture whose removal was as easy and practicable as its installation. Moreover,- as appellant contends it bought the land upon which it was situated but did not buy the machine, it is somewhat difficult to understand how it reconciles that claim with its present contention that the machine is a part of the realty.
Some question is made in appellant’s brief as to the ruling of the court in excluding testimony offered by appellant, which showed certain facts attending the installation and operation of the machine. Appellant introduced quite a good deal of testimony tending to show that the machine did not fulfill the requirements of the original contract made with Joseph G-oldberger. The court permitted appellant to introduce this testimony
The instructions given are proper and fully cover the law of the case. The instructions asked by appellant were based upon its contention as to the effect of the Cincinnati suit as a conclusive election against appellee’s right to maintain this action and were properly refused for the reasons above given.
Judgment affirmed.