57 Pa. 365 | Pa. | 1868
The opinion of the court was delivered, by
In the absence of an actual conversion, a demand .and refusal must be proved, to maintain the action of trover against a defendant who came lawfully into possession of the goods. But where the possession itself is obtained by force or fraud a demand is not necessary. The wrongful act of the party is the evidence of his intention to convert. These are familiar principles amply supported by the authorities cited and not denied by the plaintiff in error. But he takes the position that a sale by a competent party, and possession delivered under it, gives such a lawful possession as to require a demand and refusal, even though the transaction be tainted with fraud. This, however, is a misconception of the state of his case. The court below left it to the jury to find whether the sale made by the younger Yeager to his father was a gross violation of the duty he owed to his partner, Mr. De Hart, whether it was made without De Hart’s assent, and whether under the circumstances giving the father notice of De Hart’s dissent. The evidence is that De Hart came to the shop while the elder Yeager was there directing the removal of the stones and objected to the removal, that he ran up to the car-men and told them to remove no other stone at their peril, and that the elder Yeager was within hearing distance. The judge also left it to the jury to say whether the sale was a fraud upon the partnership; in point of fact a collusive sale between the son and father in which neither ought to have participated. The verdict therefore establishes that the sale was made by one partner against the dissent of the other, with notice of the dissent to the purchaser, and in fraud of the partnership. It was not a sale by a party competent to pass a lawful possession to the purchaser. The partnership relation makes each partner the agent of the others when acting within the scope of his power; but when his agency is denied and his act forbidden by his copartner with notice to the party assuming to deal with him as the agent of the firm, his act is not that of the firm, but his individual act only. The ease presented therefore a possession acquired by fraud in the face of the dissent of the other partner, making it a tortious and not a lawful possession. Demand and refusal were not necessary to establish a conversion. This disposes of the 1st, 4th and 6th assignments of error. All the others relate to 'the right of Mr. Wallace as receiver of the partnership to maintain the action. But these objections are out of time, and could not be raised in the trial of
Finding no error in the record, the judgment is affirmed.