Anderson v. Sutherland

65 N.W. 365, 91 Wis. 585, 1895 Wisc. LEXIS 102

• Court: Wisconsin Supreme Court
• Decided: December 17, 1895
• Status: Published

Opinion

NewmaN, J.

There is little or no controversy about the facts of the case. The main contention is on the questions of the necessity of a demand for the return of the logs before the action was commenced, and whether there was such demand. Both questions seem to have been resolved by the trial court in the affirmative. Ordinarily, a demand and refusal are evidence only of conversion, and not conversion itself. Where there has been an actual conversion, there can, ordinarily, be no occasion for a demand. In the instant case there was an actual conversion of the logs. The only question is whether the defendant is responsible for that ■conversion. The logs were first wrongfully taken by Brace, and by him delivered to the defendant. It is claimed that -the defendant received them in good faith from Brace, and that he was entitled to an opportunity to surrender them to the plaintiff without costs. Whether a demand is necessary where the defendant is a bona fide-purchaser from a wrongdoer, the courts are not agreed. Perhaps the weight of authority and the better reason is against the necessity of a ■demand. Gillet v. Roberts, 57 N. Y. 28; Surles v. Sweeney, 11 Oreg. 21, and cases cited; Cowillard v. Johnson, 24 Wis. 533, 540. But the question is not important here, for there was a sufficient demand for those logs which the defendant had received before he was apprised of the true ownership. As to those which he received afterwards, he was not a bona \fide purchaser, and no demand could be necessary.

No reversible error is found.

By the Oowrt.— The judgment of the circuit court is affirmed.