Wheeler v. Pereles

40 Wis. 424

Opinion

Lyon, J.

Tbe testimony of tbe plaintiff tended to show a conversion by tbe defendants of the policy in question; for certainly, if they surrendered tbe policy for cancellation to tbe company which issued it, and tbe same was in law can-celled, tbat is a conversion, no matter what they received in return for it. It is equally certain tbat where property lias been actually converted, a demand and refusal is not essential to the maintenance of an action of trover therefor. School District v. Zink, 25 Wis., 636.

If the defendants converted tbe policy,- tbe plaintiff is entitled to recover some damages in this action; and there was sufficient proof of such conversion to send the question to tbe jury. Hence tbe nonsuit was erroneously ordered.

Some very important questions as to tbe rule of damages, the effect of a present offer by tbe defendants to return tbe policy in question, and the failure of tbe plaintiff to pay into court tbe amount for which tbe policy was held as security, were suggested on tbe argument. But these questions have not yet been reached in the case, and it would be improper to intimate an opinion upon any of them at tbe present time.

By the Court. — Judgment reversed, and a new trial ordered.