Buffington v. Clarke

8 A. 247, 15 R.I. 437, 1877 R.I. LEXIS 73

• Court: Supreme Court of Rhode Island
• Decided: January 22, 1877
• Status: Published

Opinion

Per Curiam.

Tbe plaintiff sues tbe defendant in trover for tbe conversion of a watcb. Tbe action was tried in tbe Court of Common Pleas, where a verdict was rendered for tbe plaintiff, and comes before us now on tbe defendant’s petition for a new trial, on tbe ground that tbe verdict was against tbe evidence. Tbe report of tbe testimony shows that tbe watcb originally belonged to tbe plaintiff’s father, who gave it to tbe plaintiff shortly before his death, and that tbe plaintiff allowed bis father’s widow to take and carry it, with the understanding that it should come back to him at her death. Tbe watch remained in her possession until her decease on September 13, 1884. She was á sister of tbe defendant, and died at bis house, where she bad been living for' two or three years. There was some talk about tbe watcb at tbe funeral, but no positive demand for it was made. Indeed, tbe plaintiff was not present at tbe funeral. A few days later tbe plaintiff sent a letter to the defendant demanding tbe watcb. Tbe defendant replied that bis sister, tbe widow, bad left a will, which be bad; that he would have it probated at the earliest moment; that tbe watcb was safe; and that until some one was appointed to take charge of bis sister’s effects be should not feel at liberty to pass the custody of it to anybody else. Thereupon the plaintiff began this suit, the writ therein being dated September 25, 1884. It does not appear that the defendant bad any knowledge that the watch belonged to the plaintiff in the lifetime of bis sister, and he himself testifies that bis sister always treated and spoke of it as ber own. Neither does it appear that the defendant at the time of the demand bad any possession of the watch other than as be bad possession of the other effects of bis sister, by their being in bis bouse, nor that he asserted any claim or right to it.

Kdward JJ. Bassett, for plaintiff. James Harris, for defendant.

We do not think that the jury were warranted on this testimony in finding a conversion by the defendant. He did not absolutely refuse to deliver the watch to the plaintiff, but only declined to take it from among his sister’s effects and deliver it to bim before tbe appointment of tbe executor. Proof of demand and refusal is only primd facie proof of conversion, and is always open to explanation. When the refusal is only for a time, for tbe purpose of ascertaining ownership, no conversion can be inferred unless tbe refusal is unreasonably prolonged. The refusal must amount to a denial of the demandant’s right in order to be a conversion. There does not appear to have been anything in the conduct of tbe defendant, or in tbe language used by him as reported, wbicb could warrant the jury in finding a denial of the plaintiff’s right, or anything more than the taking of a reasonable time to inquire into and ascertain bis duty. Singer Manufacturing Co. v. King, 14 R. I. 511; also in 24 Amer. Law Register, N. S. 48, 51, note. Petition granted.