62 Pa. Super. 487 | Pa. Super. Ct. | 1916
Opinion by
The plaintiff bought from the defendant a passage ticket issued by a steamship company and afterwards redelivered it to the defendant upon the latter’s promise to forward or present it to the company for redemption and to turn over to the plaintiff the money obtained thereby. The latter made repeated demands upon the defendant to return the ticket or the money. These demands were not complied with, the defendant asserting in response thereto that he had sent the ticket to the company for redemption, and that the company retained it, but had not sent him the redemption money. Subse
It is argued, that when there has been no actual conversion of property a demand and refusal cannot lay a foundation for the action of trover, unless at the time of the refusal the- party has the property demanded, so that he can comply with the demand, and that under the evidence in this case the defendant did not-have the ticket in his possession at the time the return of it was demanded; therefore he was entitled to an affirmance of his point that under all the evidence the verdict should be in his favor, or, failing in .that, to the granting of his motion for judgment n. o. v. A fatal defect in this argument is that it assumes as an admitted or undisputed fact that the ticket was not in the defendant’s possession at the time the demand was made, whereas there was evidence, though not uncontradicted, tending to show that- his assertion at that time, as well as at the trial, that he had sent the ticket to the company was not true. It may be conceded for present purposes that his mere giving a false statement to the plaintiff as to how the ticket passed from his possession would not preclude him from showing on the trial the truth as to that matter, and if thereby the inference of conversion would be rebutted there could be no recovery in this form of action. But the explanation he gave on the trial did not differ essentially from that which he gave the plaintiff as an excuse for not complying with the latter’s demand. Whether it was true was a question of fact arising upon conflicting evidence which it was the exclusive province of the trial court to decide. Giving to the general finding of the court the effect of a general verdict of a jury, as must be done, it is fairly to be pre
The fifth assignment alleges error in the admission of certain evidence, but the evidence is not quoted in the assignment, nor is the place in the appendix where it may be found stated. The assignment is in plain violation of Rule XYI of this court, and for that reason will not be considered.
The assignments of error are overruled, and the judgment is affirmed.
The opinion in the above mentioned case was written by Judge Rice, to whom the case was duly assigned for that purpose during his term of office, and is now adopted as the opinion of the court.
By the Court.