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Boyce v. Brockway

Court of Appeals of the State of New York
Mar 1, 1865
31 N.Y. 490 (N.Y. 1865)

Summary

noting that even if defendants received certain goods "under an honest but mistaken belief that the property was their own, they would still be liable to plaintiffs if their acts in regard to it amount to a conversion"

Summary of this case from Newbro v. Freed

Opinion

March Term, 1865

A. Becker, for the appellant.

S.L. Mayham, for the respondent.



The offer to show that one of the plaintiffs had assigned his interest in the cause of action and was not then the owner thereof, was properly excluded. That fact, if proved, would not affect the right to proceed with the action (Code, § 121), nor would it present any question for the jury. The offer also to show that "the plaintiffs, other than Mattice," were not partners, was properly excluded. Evidence had been given to show that all the plaintiffs were partners in, or joint owners of the butter in question, and the offer should have been directed to that fact. It was quite immaterial to show that three of the plaintiffs were not partners aside from the fourth, in the butter, for the plaintiffs' proof that the partnership consisted of four persons, was necessarily a concession that it did not consist of three.

The motion for nonsuit was correctly disposed of. The plaintiffs had shown substantially that several firkins of this butter, which had been sent to them by Brown, had been delivered to defendant at Catskill; that he had received the same with notice that some portion of the butter belonged to plaintiffs, and afterwards shipped it as his own to New York. This was a very clear prima facie case, and it would have been error to have taken it from the jury by granting the motion for nonsuit.

The defendant gave evidence tending to show that he received the butter in question in good faith, supposing it to be his own, and without any knowledge that it belonged to plaintiffs. He requested the court to charge that "in that case if he took the same care of it as his own, and it was lost without his fault, this action was not sustained." The charge as requested would have been proper if the defendant had, under such circumstances, simply received the butter and stored it in his warehouse. Such an act would not have been the exercise of such dominion over it, as would amount to a conversion without proof of a demand and refusal. There would be no sufficient assumption of ownership by a mistaken acceptance of the property so delivered, to render him chargeable for any relation beyond that of bailee; but quite a different question arose when he shipped the butter to New York as his own. That was an assumption of dominion, which, whether founded on mistake or not, was in hostility to the ownership of plaintiffs. The law on this subject is well settled. "The proof," says BROWN, J., in Cobb v. Dows (9 Barb., 242), "need not show a tortious taking, or that the defendants acted in bad faith. If it should appear that they obtained the goods fairly from a person whom they had reason to think was the true owner, or if they acted under a mistake as to the plaintiffs' title, or under an honest but mistaken belief that the property was their own, they would still be liable to plaintiffs if their acts in regard to it amount to a conversion. If they have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they are guilty of a conversion, and their liability to plaintiffs is established." This exposition of the law is fully sustained by the authorities. ( Perkins v. Smith 1 Wils., 328; Everett v. Coffin, 6 Wend., 603; Williams v. Merle, 11 id., 80; Saltus v. Everett, 20 id., 267; Hoffman v. Cason, 22 id., 285; Covell v. Hill, 4 Denio, 323; Allen v. Crary, 10 Wend., 349; Murray v. Burling, 10 Johns., 175; Schroeple v. Corning, 5 Denio, 240; Connah v. Hall, 23 Wend., 462.)

A wrongful intent is not an essential element of the conversion. It is enough in this action that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it.

There was nothing in the case to justify the request to charge as to the effect of mixing the butter. It was not mixed in any sense to call for the application of the rule sought to be invoked. It was in separate firkins, distinctly marked with the initials of the maker, and by a cross on the end of each firkin in red chalk; and there was no wrongful act of admixture on the part of the plaintiffs or their agent that could affect its identity or tend to destroy the identity of defendant's firkins.

Nor was it error to decline to charge the jury that "if they credited the defendant's testimony he was not guilty of converting the butter." The charge as given is not stated in the case. We must presume it presented the questions of fact fully and fairly to the consideration of the jury. The court was under no obligation to adopt the form of charge suggested by the request, and thus, in effect, limit the consideration of the jury to the credit to be given to the testimony of a single witness. It is not necessary to say that such a form of charge would be erroneous. It is clear that it might have a tendency to mislead a jury from the questions of fact to a mere question of the credibility of a witness, and, therefore, its adoption by the court is not a matter of legal right.

The judgment of the General Term should be affirmed.

All the judges concurring,

Judgment affirmed.


Summaries of

Boyce v. Brockway

Court of Appeals of the State of New York
Mar 1, 1865
31 N.Y. 490 (N.Y. 1865)

noting that even if defendants received certain goods "under an honest but mistaken belief that the property was their own, they would still be liable to plaintiffs if their acts in regard to it amount to a conversion"

Summary of this case from Newbro v. Freed

noting that even if defendants received certain goods "under an honest but mistaken belief that the property was their own, they would still be liable to plaintiffs if their acts in regard to it amount to a conversion"

Summary of this case from Newbro v. Freed

In Boyce v. Brockway (31 N.Y. 490) it was held that the sale by the defendant of butter which belonged to the plaintiff was an assumption of dominion in hostility to the rights of the owner, and was, in law, a conversion.

Summary of this case from Industrial & General Trust, Ltd. v. Tod

In Boyce v. Brockway (supra) certain tubs of butter belonging to plaintiffs had been delivered to the defendant, who shipped them away with butter of his own, for sale, and they had been lost.

Summary of this case from Suzuki v. Small

In Boyce v. Brockway (31 N.Y. 490) it was held that where the defendant, at Catskill, received property in good faith and stored it in his warehouse, such act was not the exercise of such dominion over it as would amount to a conversion without proof of a demand and refusal; but that when he afterward affirmatively treated the article as his own and shipped it to New York for sale, he did assume dominion over it.

Summary of this case from Williamson v. Seely
Case details for

Boyce v. Brockway

Case Details

Full title:JOHN BOYCE and others, Respondents, v . JESSE BROCKWAY, Appellant

Court:Court of Appeals of the State of New York

Date published: Mar 1, 1865

Citations

31 N.Y. 490 (N.Y. 1865)

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