435 Pa. 57 | Pa. | 1969
Opinion by
The appellee in this action of conversion is a corporation which was formed to build and operate an
Appellee contends that these items were not fixtures and hence did not become part of the realty. Had they been part of the real estate they could not be the subject of an action for conversion, 18 Am. Jur. 2d Conversion §20 (1965). Because of the basis upon which we reverse we do not determine whether these items are fixtures under the “assembled industrial plant” doctrine, or are in some other way covered by the wording of the mortgage agreement. It is apparent that if they were part of the real estate they passed with the real estate at the sheriff’s sale.
If, as contended, these items were personalty, appellant had neither possession nor dominion over this personalty and an action for conversion does not lie. When appellant, with the consent of appellee, took over the rental activities and received the rent proceeds, it was, at most, exercising the rights of a mort
Salmond defines conversion as an act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession. Salmond, Torts (10th ed. 1945) at 286. Prosser describes the following ways in which a conversion can be committed: “(a) Acquiring possession of the goods, with an intent to assert a right to them which is in fact adverse to that of the owner, (b) Transferring the goods in a manner which deprives the owner of control, (c) Unreasonably withholding possession from one who has the right to it. (d) Seriously damaging or misusing the chattel in defiance of the owner’s rights.” Prosser, Torts, §15 (2d ed. 1955).
No evidence has been submitted which would bring this case within the above definitions. Taken ad seriatim: (a) Even if appellant acquired possession, the intent to assert a right adverse to the owner is lacking. “The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff’s rights.” Prosser, op. cit. at 70; Restatement 2d, Torts, §223, comment b (1965) ; Annot., 131 A.L.R. 165, 168 (1941) ; Zaslow v. Kroenert, 29 Cal. 2d 541, 549, 176 P. 2d 1, 6-7 (1946). Here the goods were obtained with the consent of appellee. The goods were left to aid in the rental of the apartments and were accordingly put to that purpose, (b) The goods were not transferred in
In the instant case there is no evidence in the record that appellant in any way exercised dominion over these articles or acted in any way inconsistent with appellee’s ownership. Appellee had not made a demand for these goods at any time when appellant could have complied with the request. In the absence of any circumstances indicating misapplication or an intent to exercise dominion adverse to the owner, a demand and refusal is an essential element of an action for conversion. Appellee could have asserted its right of possession, if any, at any time during which appellant operated the apartment house. Access to the goods was at no time denied. Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 197 A. 2d 721 (1964).
We have searched the record and have been unable to find the necessary elements for the cause of action of conversion. The judgment is reversed and the complaint dismissed.