Knapp v. Winchester

| Vt. | Feb 15, 1839

Redfield, J.

Two questions arise in the present case.

1. Have the plaintiffs shown any. sufficient property to maintain the action ?

2. Has the defendant been guilty of a conversion ?

The case states, that testimony was given tending to prove certain propositions, and, also, that certain facts were proved ; — upon which the court decided, that the plaintiffs could not recover. The plaintiffs now object, that the court decided upon the facts, as well as the law. This court see no reason for that objection. Whether the testimony is all given by plaintiffs or by both parties, if there is no conflict, it is usual to state that such facts, as the testimony detailed, were proved, and that thereupon the court held the plaintiff could not recover.

Sometimes the testimony is stated, and the case is concluded by the court, charging the jury, that if all the evidence is believed, still the plaintiffs cannot recover. And in other cases, the testimony being detailed at length, the court direct a verdict. The manner of making up the case is merely formal, and different judges, on the circuits, adopt different modes. The substance of the thing is, that the court direct a verdict. In such case, where the party excepts, the testimony should either be detailed, or every distinct proposition, whleh the testimony tended to pfove, should be stated; and, in either case, the party excepting has a right to the most favorable view of his case, i. e. he may consider every thing as found in the ease, which the testimony had any legal tendency to establish.

In this view of the case, were the two propositions, above ) stated sufficiently proved? It is not pretended that the plaintiffs showed any general property in the things sued for. They belonged to Pratt, and were in'the custody of his wife. She had them for her own convenience, while with the plain- , tiffs. She gave no consent to plaintiffs’ retaining them, neither did Pratt. The overseers of the poor had no right, nor did they attempt, to convey any interest to plaintiffs. The plaintiffs’ right, then, after Mrs. Pratt left, was only that of a mere naked possession. This of itself is a sufficient title to sustain trover against any, but the one lawfully entitled to the possession. In this respect it matters not whether the pos- ' session be rightful or obtained by foice or fraud. It is a sufficient title, in either case, to maintain trover against a mere stranger. But in the present case, the plaintiffs surrendered their possession for the benefit of Mrs. Pratt. Whatever right, then, they had acquired by that possession was as effectually gone, as if they had never had the possession. The plaintiffs did, indeed, at the time of giving up their possession, enter a protest against being thereby concluded in asserting their rights to the property. But this will not avail them as a substantial ground of recovery. It prevents any inference against them, but is no ground of inference in their favor. They did not even require of the defendant, on receiving the property, to stipulate a return of it. The receipt given is merely evidence of the possession having passed over to defendant by consent of plaintiffs. There is, then, no evidence in the case, tending to show any such right of propei’ty in the plaintiffs, as will warrant a recovery.

The court findj no evidence of conversion by defendant. The taking was by consent of plaintiffs. The use was consistent with the intent for which it was delivered. The demand and refusal could be no evidence of conversion, the possession, at the time, not being in defendant, Smith v. Young, 1 Campbell, 440. Rice v. Clark, 8 Vt. R. 109.

Judgment affirmed.