Herndon v. Chamberlin

125 S.E. 780, 33 Ga. App. 253, 1924 Ga. App. LEXIS 830

Opinion

Jenkins, P. J.

“In an action for tlie recovery of damages on account of a conversion, proof of a demand and a refusal is only required as evidence of the conversion; and where the conversion is shown by other evidence, such proof is not essential.” Merchants & Miners Trans. Co. v. Moore, 124 Ga. 482 (52 S. E. 802); Beasley v. Cen. of Ga. Ry. Co., 29 Ga. App. 584 (1) (116 S. E. 227). Likewise, it is unnecessary to prove a demand and refusal, or any other conversion of the property, where the defendant in his answer admits possession in himself and denies the plaintiff’s averments of title. Securities Trust Co. v. Marshall, 30 Ga. App. 379 (3) (118 S. E. 478); Smith v. Commercial Credit Co., 28 Ga. App. 403 (1) (111 S. E. 821). The fact that the plaintiff’s petition, in the usual trover form, alleged demand and refusal did not render proof thereof necessary for a recovery, where the defendant’s answer claimed lawful possession in himself through title in another, and wholly denied the plaintiff’s title and right. The instructions with reference to demand and refusal being erroneous, a new trial should have been granted.

Judgment reversed.

Stephens and Bell, JJ., concur. J. A. Mitchell, for plaintiff. Iiawes Cloud, for defendant.