Bolling v. Kirby & Brother

90 Ala. 215

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

McCLELLAN, J.

We do not doubt that the title to the machine involved in this action remained in the plaintiffs below, under the contract put in evidence,' until the purchase-money thereof was paid. In considering the question whether the transaction between Hooper and Bishop was a payment, it may be. admitted that Hooper was the special agent of plaintiffs to receive cattle in payment, and to deliver up the paper, and that he did so receive the- cattle and deliver up the paper as that, without more, the debt was satisfied; and it may be further conceded that he had no authority to enter into an arrangement with Bishop, by which creditors of the latter, having a lien of some sort on the property, were allowed to take the cattle, and the note was banded back to him by Bishop, and the satisfaction thereof obviated and expunged, so to speak. Yet we do not doubt that Bishop had full authority to make this arrangement, and that the lack of power to this end in Ilooper was cured by the ratification, of his unauthorized act in this behalf by his principals, the present plaintiffs. The note did not bind the wife. — r2 Brick. Dig. p. 98; Walker v. Struve, 70 Ala. 167. Under the facts of the case, the delivery of the cattle in payment of the note was no more than an exchange of that property for the machine, vesting title to the machine in the husband alone; and this, even had the cattle belonged to the wife, of which there is no proof. Wood v. Dunlap, 73 Ala. 169; Kennon v. Dibble, 75 Ala. 351. The title thus being in Bishop alone, it was entirely competent for him to agree that the payment which had so vested it in him should be considered as not having been made, and that it should revest in Kirby & Brother; and this agreement he must be held to have made, by handing the note back to Hooper, in consideration of the cattle being applied to another debt owed by him. The rulings and instructions of the court on this part of the case were free from error.

It is not essential to a conversion which will support the action of trover, that the defendant should have the complete manucaption of the property. An intermeddling with, or dominion over the property of another, whether by the defendant alone, or in connection with others, which is.subversive of the dominion of the true owner, and in denial of his rights, is a conversion.—Freeman v. Scurlock, 27 Ala. 407; Conner v. Allen, 33 Ala. 515. Hence, it is not important that, when Kirby went to the residence of the defendant to demand the machine, it was not in his possession strictly speaking, but in that of Mrs. Bishop, who then lived on his premises, if the defendant interfered to prevent, and did prevent the plaintiff from then taking possession of it, by the unqualified assertion of a title inconsistent with the plaintiffs’, and an unconditional refusal to allow the plaintiffs to take the property away. Whether the defendant had the possession in himself or not, such intermeddling in defiance of plaintiffs’ right was a conversion. But, if there was a bona fide controversy as to whether payment had been made, and if the defendant, while asserting payment, and predicating his right to prevent a removal of the property on title in Bishop, springing out of payment, recognized the controversy and uncertainty as to whether payment had been made, and declined to allow the machine to be removed until the truth of that matter could be ascertained; and if it was thereupon agreed between him and Kirby, that he should go to Guntersville the next day, and satisfy himself about it,, and that if he found the note had not been paid, the property should be surrendered to the plaintiffs, — these facts would not-constitute a conversion. Such a qualified and conditional refusal by Mrs. Bishop would have been reasonable and justifiable under the circumstances, and would not have afforded any evidence of a conversion by her; and the interference of Bolling in her behalf stands upon the same footing.—Dent. v. Chiles, 5 S. & P. 383 ; Butler v. Jones, 80 Ala. 436. In such case, the plaintiffs are held to have assented to the retention of possession by Mrs. Bishop pending the investigation agreed on, and no action for conversion can be predicated on a possession so-retained, until a demand and refusal to' deliver after the assent-has been withdrawn, or the time covered by it has lapsed.. Voltz v. Blackmar, 64 N. Y. 646; Finch v. Clark, Phill. (N. C.) L. 335.

Conversion, wdiich Avill sustain trover, must be a destruction of the plaintiff’s property, or some unlawful interference-AA'ith his use, enjoyment, or clominion over it; an appropriation of it by the defendant to his own use, or to the use of a. third person, in disregard or defiance of the owner’s right; or a withholding of possession under a claim of title inconsistentAviththe title of the owner.—Glaze v. McMillan, 7 Port. 279; Gray v. Crocheron, 8 Port. 191; Freeman v. Scurlock, supra; Conner v. Alen, supra; Thweatt v. Stamps, 67 Ala. 96; Central R. R. & R. Co. v. Lampley, 76 Ala. 357, 368; Tinker v. Morrill, 39 Vt. 477 ; S. c., 94 Amer. Dec. 345; Burroughs v. Bayne, 5 H. & N. 296; Fauldes v. Willoughby, 8 M. & W. 539; 2 Greenl. Ev. § 642. It is immaterial whether the conversion or appropriation be for the benefit of the defendant, or' of a third person. “The true inquiry is,‘Does the defendant exercise a dominion over the property, in exclusion or defiance of the plaintiff’s right?’ If he does, that is, in law,, a conversion, be it for his own or another person’s use.” Cooley on Torts, p. 448; Liptrot v. Holmes, 1 Kelly, 381-391. Conversion upon which recovery in trover may be had must. be a positive, tortious act. Nonfeasance, or neglect of legal duty, mere failure to perform an actmade obligatory by contract, or by which property is lost to the OAvner, will not support the action. —Sturgis v. Keith, 57 Ill. 451; Bailey v Moulthorp, 55 Vt. 17; Rodgers v. Hine, 56 Amer. Dec. 363; Ragsdale v. Williams, 49 Amer. Dec. 406. A bailee is not liable in trover for a loss of property through larceny from him, or because of negligence resulting- in its destruction.—Hawkins v. Hoffman, 6 Hill (N. Y.), 586; Packard v. Getman, 4 Wend. 613. If the bailee undertakes to carry theproperty ■ to the owner, and fails to do so, and it is subsequently lost, while in his possession through no positive misconduct of his, he is not liable for conversion.—Farrer v. Rollins, 37 Vt. 295. But, if he does any affirmative act inconsistent' with the bailment, and known by him to be so, trover will lie against him.—Jones v. Hodgins, 61 Mo. 480. And if,'having-notice of the claim of the true owner, he delivers the property to another person, or permits another to take it out of his possession, whereby it is lost to the plaintiff, he is liable for its value in this form of action.—Dearborn v. Union Nat. Bank, 58 Mo. 273; Phillips v. Brigham, 26 Ga. 617; Ala. & Tenn. Rivers R. R. Co. v. Kidd, 35 Ala. 209.

Each of the several charges given by the court beloiv at the request of the plaintiff is supported by one or another of the principles we have announced. Only one of them is objectionable in any respect, and that not in such sort as will work a reversal. Charge No. 6 is argumentative in that it directs that the jury may look to certain testimony, &c., as determining whether, defendant had control of the property;, but, while the charge might have been refused on this ground, the giving of it is not a reversible--error.—Birmingham Brick Works v. Allen, 86 Ala. 185.

Of the charges asked by the defendant, the 1st and 10th. direct a verdict for the defendant, if the jury believe the evidence. We suppose these charges, as also charges 5, 7 and 9„ were requested on the theory, that the cattle transaction, to< which reference has been had, was a payment of Bishop’s, note, and operated a divestiture of plaintiff’s title. This, position, as we have seen, is untenable, and it follows that charges. 1, 5, 7, 9 and 10 were properly refused. Charge No. 4 is bad, in that it required the jury to find that Bolling had not converted the property, although they should believe that, when Kirby demanded it from Mrs. Bishop, Bolling interfered, and unqualifiedly and unconditionally refused to allow him to remove it, and by these means prevented its removal. Charge No. 6 would have defeated a recovery, unless the jury believed Bolling converted the machine to his own use, when he would have been, as we have seen, equally liable for a conversion to the use of Bishop or Mrs. Bishop, or for a delivery to either of them, if he had possession or control of it after notice of plaintiffs’ claim. Charge No. 8 is open to the same infirmity as No. 6, and moreover is misleading, at least, in its requirement of evidence of possession in the defendant, since the jury might thereby have been induced to the conclusion that his intermeddling with the property while, in srictness, the possession was in Mrs. Bishop, was not a conversion, although it was in one aspect of the evidence a palpable dominion over it- to the exclusion of plaintiffs’ rights.

The .defendant also requested the following charge: “If the jury find from the evidence that all the defendant did in reference to the machine ■ was to move it with his daughter to a house on his place, and come to town to make inquiry as to what was the truth as to the payment of the note given by Bishop for the- machine; and that he allowed his- daughter, Mrs. Bishop, to remain in a house on his place; and that the machine was afterwards carried away by Bishop, one of the makers of the note; this would not make him guilty of a conversion of the sewing-machine, and the' verdict of the jury should be for the defendant.” This charge was refused, and an exception reserved. As we read the evidence, every fact it hypothesizes -is based on testimony in the case. It is therefore not abstract.. It presents the defendant’s aspect of the case, not upon a part of the testimony, but on all of it. The jury are not restricted in determining yliether they will believe the facts hypothesized to the evidence in behalf of the defendant, but they are directed to consider the whole evidence, and if upon that consideration they find these facts to be true, they must find for the defendant. If the charge asserts a correct proposition of law, therefore, it should have been given.—Alexander v. Wheeler, 78 Ala. 167; Munkers v. State, 87 Ala. 94. Our opinion is, that the charge asserts a sound principle of law. If the facts stated were found to exist by the jury, the only act the defendant did in connection with the property was in conservation of it — he gave it shelter — a Mrindness to the owner done without any intention of injury to the thing, or of converting it — an act perfectly consistent with the right of the owner and his dominion over it.”—Conner v. Allen, supra; Dent v. Chiles, supra. And though he thus gave shelter to the property, it was as property, the possessory right, at least, to which was in Mrs. Bishop, and, on these facts, he never disturbed her possession, or acquired any possession in- himself, that would have authorized or enabled him to have prevented the removal of the machine by Bishop. The charge ought to have been given. So ought charge No. 2. The bare possession of property, without some wrongful act in the acquisition of possession, or in its detention, and without illegal assumption of ownership, or illegal user or misuser, is not a conversion.—Glaze v. McMillan, 7 Port. 297.

For the errors committed in refusing to give the two charges last considered, the judgment of the Circuit Court is ‘reversed, and the cause remanded.