| Mich. | Oct 29, 1878
Brittain brought trover against Bodgers for conversion of a drill machine. The case shows that the machine was some time in the winter of 1870-1 taken from the shop of Brittain to the shop of Bodgers, and remained there till suit brought in November, 1875. That during this interval Bodgers used it. Demand was made of Bodgers before suit brought, and refused.
It also appeared that defendant some time in March, 1871, purchased the machine at a sale under chattel mortgage given by Brittain. This sale seems to have been after the removal. Brittain claims that the mortgage had been paid, and this is disputed.
The court- directed the jury that if they found Brittain had any cause of action they should give the value of the machine at the time it was taken into the possession’of Bodgers, with interest from that time at seven per cent.
This instruction was incorrect upon any theory, because it is fairly to be inferred from the case that the defendant set up no claim to the ownership of the property until he purchased at the mortgage sale, and there could be no pretense of any earlier conversion by him.
But the question comes up further, what evidence there was of conversion and its date. It may be fairly claimed that when plaintiff on the trial opened his case by showing a demand and refusal in' 1875, he thereby elected to fix the date of it as set forth in his declaration. Without deciding this, it seems to us the record is quite consistent with the fact that there was no earlier action which put Bodgers in the wrong. Unless his purchase was tortious he certainly could not be sued in trover without demand.
It is to be inferred from the record that Brittain had
The judgment must be reversed with costs and a new trial granted. We have not the authority to give a new judgment with the proper deductions as we were requested to do. *