Hallenbake v. Fish

8 Wend. 547

• Court: New York Supreme Court
• Decided: January 15, 1832
• Status: Published

Opinion

By the Court, Savage, Ch. J.

There can be no doubt that the defendant would be liable on the facts presented, in an action on the case upon the custombut if the same rule is applicable in an action of trover against an inn-keeper which governs in that action against a common carrier or wharfinger, then an actual conversion must be proved. In Packard v. Getman, 4 Wendell, 613, it was decided, that to charge a common carrier in an action of trover, an actual conversion must be proved ; that in such a case, a demand and refusal to deliver the goods is not sufficient evidence of a conversion, unless the goods were in the possession of the defendant, or under his control at the time of the demand. If the goods are stolen or lost by accident, the carrier is not liable in trover; the refusal to deliver on demand in such case raises no presumption of conversion ; but the carrier is liable in another action. The liability of the common carrier and inn-keeper is very similar ; they are both bailees, and liable for losses under similar circumstances ; and the same rules seem to be applicable to both as to the mode of subjecting, them to liability ; and if so, trover cannot be maintained, though case may.

Judgment affirmed.