116 P. 1066 | Or. | 1911
delivered the opinion of the court.
Plaintiffs assign error of the court in holding as a conclusion of law that, upon the facts found and stated, the acts of defendant did not constitute a conversion of the goods, and that plaintiffs’ complaint should be dismissed. Before the court made or filed its findings, plaintiffs requested it to find, as part of its conclusions of law, that defendant was guilty of conversion of the goods, and that they were entitled to judgment for the value thereof. The findings of fact made by the trial court stand in the place of the verdict of a jury. Plaintiffs contend that these findings show that the property in controversy was wrong
“A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff, under a claim of title, inconsistent with his own.” 2 Greenleaf, Evidence, § 642.
Lord Holt, in Baldwin v. Cole, 6 Mod. 212, defines a conversion as “the assuming upon oneself the property in and right of disposing of another’s goods.” Tinker v. Morrill, 39 Vt. 477, 480 (94 Am. Dec. 345). A conversion is defined by this court in Ramsby v. Beezley, 11 Or. 49
“Trespass lies for any wrongful force, but the wrongful force is no conversion where it is employed in recognition of the owner’s right, and with no purpose to deprive him of his right temporarily or permanently.” Cooley, Torts (3 ed.) 847.
The testimony in the case is not before this court, and as to the facts we notice only the findings made by the trial court in the light of pleadings, from which it does not appear that the defendant asserted any title to the property or claimed any right thereto, and her temporary possession thereof was not inconsistent with the right of plaintiffs, whose ownership, it appears, she at all times recognized. As we understand the findings of the trial court, her act in storing the property was for its protection, and in full recognition of plaintiffs’ rights therein. Any assertion to the contrary is negatived by her symbolic delivery of the chattels in surrendering the warehouse •receipt therefor to plaintiffs’ attorney, which receipt, so far as shown by the record, and in accordance with our understanding of the argument of counsel, has ever since been retained by plaintiffs. Much is claimed in the argument from the fact that when the warehouse receipt was delivered to plaintiffs’ attorney it was not indorsed by defendant. After a careful examination of the language of the receipt, we are of the opinion that this was unnecessary. If an indorsement were necessary, the proper persons to make it would be the plaintiffs, Hung Sun & Co. We see no more reason for such a requirement from defendant than from any drayman or teamster, hauling and storing goods in a warehouse for the owner. Had the plaintiffs attempted or desired to care for the
“A conversion of property is an act of malfeasance, not of mere nonfeasance; a positive wrong, and not the mere omission of what was right. The manner in which possession of the property was acquired by the defendant in an action of trover may be material with regard to the evidence of a conversion. * *” Schroeppel v. Corning, 5 Denio (N. Y.) 236, 240.
Lord Mansfield defines the action of trover to be a remedy “to recover the value of personal chattels wrongfully converted by another to his own use.” While in 8 Words & Phrases, 7111 (citing Waring v. Pa. R. R. Co., 76 Pa. 491, 496), this definition appears:
“The taking may have been lawful; hence the gist of the action lies in the wrongful conversion. Where one has the lawful possession of the goods of another, and has not converted them, this action will not lie until there has been a refusal to deliver them on demand made.”
See, also, Boulden v. Gough, 4 Pennewill (Del.) 48, (54 Atl. 693).
“A conversion is the gist of the action, and without • conversion neither possession of the property, negligence, nor misfortune will enable the action to be maintained.” 8 Words & Phrases, 7112.
In order to maintain an action for conversion, there must have been, on the part of the defendant, some unlawful assumption of dominion over the personal property involved, in defiance or exclusion of the plaintiffs’ rights, or else a withholding of the possession from the plaintiffs, under a claim of right or title inconsistent with that of the plaintiffs. Thweat v. Stamps, 67 Ala. 96, 98; France v. Gibson, 101 S. W. (Tex. Civ. App.) 536; Swank v.
“The bare removing of one’s chattel from one spot to another, without denying his ownership, but, on the contrary, acknowledging it, cannot be conversion. It is neither a deprivation of the owner’s right, nor is it use, enjoyment, change, or destruction of the property.”
In Adams v. Weir & Flagg, 99 S. W. (Tex.) 726, where the tenant refused to remove the fixtures from a building formerly occupied by him, and the same were removed and stored by the defendants, the court held that the facts did not show a conversion; there being no intention on the part of defendants to take possession of the property. It is said in Fouldes v. Willoughby, 8 M. & W. 540:
*204 “It has never yet been held that the single act or removal of a chattel, independent of any claim over it, either in favor of the party himself or any one else, amounts to a conversion of the chattel.”
See, also, 8 Words & Phrases, 7112.
“The distinction heretofore existing between forms of actions at law is abolished, and hereafter there shall be but one form of action at law, for the enforcement of private rights or the redress of private wrongs.”
In actions in the nature of trespass or case for misfeasance, the plaintiff recovers only the damages suffered by reason of the wrongful acts of the defendant. In actions in the nature of trover, the general rule of damages is the value of the property at the time of the conversion, diminished, when the property has been returned to and received by the owner, by the value of the property at the time it was returned: Austin v. Vanderbilt, 48 Or. 206 (85 Pac. 519: 6 L. R. A. (N. S.) 298: 120 Am. St. Rep. 800); Gove v. Watson, 61 N. H. 136; Spooner v. Manchester, 133 Mass. 270, 272.
It follows that the judgment of the - lower court must be affirmed, and it is so ordered. Affirmed.