Opinion
(August Term, 1848.)
1. Any act of ownership over personal property taken which is inconsistent with the owner's right of dominion over it is evidence of a conversion.
2. But where no act is done, where there is no refusal to deliver, and no claim of right to the property, where, in truth, the defendant is wholly passive, though the property was found in his possession, this, per se, does not subject the defendant to an action of trover.
APPEAL from the Superior Court of Law of IREDELL, at Spring Term, 1848, Manly J., presiding.
Guion for plaintiff.
Clarke for defendant.
Case in trover for a wagon. Property in the plaintiff was admitted. The plaintiff hired the wagon to one Baily, who swapped it away to a man by the name of Dowell. The latter, upon a visit to the defendant, who is his father-in-law, drove the wagon in question and left it on his premises, where it was found by the plaintiff and claimed. The defendant (499) told him how Dowell had brought it there, and how the latter had come by it, according to his statement, and where he might be found, and expressed a hope that Dowell and Baily might recant their bargain and the plaintiff get his wagon, provided Dowell got back the horse he traded for it. The plaintiff made an affidavit before a magistrate stating the transaction and also that the wagon was in possession of Dowell. This affidavit was read by him to a company assembled at the defendant's and a demand was made of the wagon, but of no particular person. Upon its being read the defendant observed, "Dowell has no possession here; these are my possessions." He further stated the plaintiff did not understand the laws of North Carolina as well as he did; that by those laws, if a man loaned a thing and it was sold, the owner could not get it back again. It was also testified by a witness that the defendant said on that occasion, "Keep the wagon, Dowell; I will see you out." Dowell removed from that part of the county, and nothing further was seen of the wagon. It was further in evidence that when the plaintiff returned from the defendant's he was asked if the latter set up any claim to the wagon, who replied he did not, but claimed that it was in his possession. It was insisted by the defendant's counsel that there was no evidence of a conversion by the defendant, and, if there were, it was not for his own use and benefit, and therefore the plaintiff could not recover of him, and asked his Honor so to instruct the jury, which was refused; and his Honor charged that it was not material for whose use the conversion was made; if the defendant deprived the plaintiff of the property, refusing to deliver it on demand, or if he co-operated with Dowell in conveying it away and withholding it from the owner, he would be liable. Mere arguments on the part of the defendant in favor of his son's rights would not amount to such a co-operation; there (500) must be some concert of understanding and action by which a joint conversion is effected, and in that case a joint liability would follow. The action of trover is an action of tort, and the whole tort consists in the wrongful conversion. To entitle the plaintiff to a recovery he must show a right of property in himself, either general or special, and a wrongful conversion by the defendant. In form it is a fiction; in substance, a remedy to recover damages for the property so converted.
There was a verdict and judgment for the plaintiff, and an appeal.
The only question in this case is as to the conversion, the plaintiff's title not being disputed. Any act of ownership over the property taken which is inconsistent with the true owner's right of dominion over it is evidence of a conversion. Thus an asportation of the goods for the use of the defendant or of another person is a conversion, because it is inconsistent with the general right of dominion which the owner has in the chattel. So, also, if A. is in possession of a horse or other chattel property belonging to B., and upon demand refuses to deliver it, this refusal is evidence of a conversion, because there is an assertion of right inconsistent with B.'s, of general dominion over it. 3 St. N. P., 2667; 1 Dowell, 86. In this case the defendant did not take the wagon; it is found on his premises; he neither refused to deliver it nor is there evidence of any act of ownership over it exercised by him. On the contrary, he disclaims all ownership, and tells how it came on his premises, and acknowledges the right of the plaintiff. For, although he gives it as his opinion that, by the exchange between Bailey and Dowell, the plaintiff had lost his right to the wagon and Dowell had acquired it, yet he states how the latter had acquired it, showing plainly that he was mistaken in his (501) opinion, and that the right still remained in the plaintiff. In the first conversation between the plaintiff and defendant, then, nothing occurred to put the defendant in the wrong. In the second, the plaintiff and the defendant and Dowell are all present with the wagon — the true owner, the man on whose premises the wagon had been left, and he who had brought and left it there. A demand was made by the plaintiff, but on no one in particular. Upon the affidavit being read, asserting the wagon to be in possession of Dowell, the defendant observes, "Dowell has no possessions here; these are my possessions." They were then on the premises of the defendant, and he asserted nothing but the fact; still there is no assertion of title on the part of the defendant and no refusal to deliver the wagon, nor offer or threat to prevent the plaintiff from taking possession. There is then, at this time no conversion or evidence of it. It is stated by Baron Alderson in Foulds v. Willoughby, 1 Dowl., 86, "if an act is done which does not call in question my general right of dominion over the chattel, it is no conversion." Here no act is done by the defendant from the first to last, no refusal to deliver, no claim of right to the property; in truth, throughout the whole transaction the defendant was entirely passive. We think, therefore, his Honor erred in refusing the first part of the instruction required. We concur with him in his charge, that it was not material for whose use the conversion was made (if made at all). In Shipwick v. Blanchard, 6 Term, 298, it is decided, to "maintain trover, the goods must be taken or detained with intent to convert to the taker's own use or the use of some other person. We agree further with his Honor in the latter part of the charge, but there was no evidence that the defendant aided or assisted Dowell to take off the wagon.
(502) For the error pointed out, in the refusal to instruct the jury as required, there must be a venire de novo.
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: McDaniel v. Wethercut, 53 N.C. 99; Smith v. Young, 109 N.C. 227.