Young v. Corbitt Motor Truck Co.

Full title: YOUNG v. CORBITT MOTOR TRUCK COMPANY

Court: Supreme Court of South Carolina

Date published: Jan 29, 1929

148 S.C. 511 (S.C. 1929)

146 S.E. 534

Opinion

12568

January 29, 1929.

Before WHALEY, J., County Court, Richland, October, 1927. Affirmed.

Action by S.K. Young against the Corbitt Motor Truck Company. Judgment for plaintiff, and defendant appeals.

Note dated March 25, 1927, due April 25, 1927, signed S.K. Young, introduced in evidence, and marked, "Defendant's Exhibit 1, McF":

"Columbia, S.C. March 25th, 1927. $100.00

"April 25th, 1927, after date I promise to pay to the order of Corbitt Motor Truck Company, Henderson, N.C., One Hundred Dollars, at South Carolina National Bank, Columbia, S.C. for value received, with interest at six per cent. per annum from date until paid, and if allowed by law, 15 per cent. of the principal and interest of this note as attorney's fees, if placed in the hands of an attorney for collection, and authority, irrevocably to any attorney-at-law to appear for me/us in any Court, and waive the issue and service of process and confess a judgment against me/us in favor of the holder hereof, either severally or jointly with any endorser or endorsers hereof, for such amount as may appear to be unpaid hereon after maturity together with costs and attorney's fees, and to release all errors and waive all right of appeal. Value received without relief under any exemption or insolvency law.

"The express condition of purchase and sale of Model 21 Corbitt Truck No. 217043 for which this note is given, is such that the title and ownership, notwithstanding delivery, does not pass from said Corbitt Motor Truck Company, until this note and interest are paid in full; and if same should become due and unpaid, or any portion of the same, Corbitt Motor Truck Company, or any of its agents, are hereby authorized to enter upon our premises, or wherever it may be found, and take possession of said Model 21 Corbitt Truck No. 217043 and sell same either at public or private sale, and place proceeds as a credit on this note. This note is to become due and payable upon the removal of the maker from the County in which they reside, or whenever the holder deems itself insecure.

"The subscribers and endorsers hereby severally waive presentation for payment, protest and notice of protest, and non-payment of this note.

"S.K. YOUNG [Seal].

"Witness: A.W. MARTIN."

Copy of conditional sales contract introduced in evidence, and marked, "Plaintiff's Exhibit 14, McF":

"Corbitt Motor Truck Company, "Henderson, N.C. "Conditional Sale Agreement

"This agreement, made this 25th day of March, 1927, between Corbitt Motor Truck Company, Henderson, N.C., first party, his or its successors, agents or assigns (hereinafter, collectively called `Seller') and S.K. Young, Columbia, S.C. second party (hereinafter called `Purchaser')

"Witnesseth:

"That Seller in consideration of the payments, covenants, agreements and conditions herein contained which on the part of the purchaser are to be made, done and performed, has this day sold and delivered, but upon the conditions hereinafter recited, to the Purchaser one Corbitt Truck No. 217043, Model 21 (hereinafter called the `Corbitt Motor Truck'), for Thirteen Hundred and Twenty seven Dollars ($1,327.00), paid or to be paid by the Purchaser to the Seller or order One Hundred Twenty-seven Dollars ($127.00) upon the execution of this agreement and the balance, Twelve Hundred Dollars ($1,200.00) in installments as follows:

"$100.00 on April 25th, 1927; $100.00 on May 25th, 1927; $100.00 on June 25th, 1927; $100.00 on July 25th, 1927; $100.00 on August 25th, 1927; $100.00 on September 25th, 1927; $100.00 on October 25th, 1927; $100.00 on November 25th, 1927; $100.00 on December 25th, 1927; $100.00 on January 25th, 1928; $100.00 on February 25th, 1928; $100.00 on March 25th, 1928; which installments of purchase price shall bear interest at the rate of six per cent. per annum from ____ and are to be evidenced by promissory notes made by the purchaser to the order of the seller, bearing date hereof and maturing on the due dates of said respective installments.

"The Corbitt Motor Truck is subject only to manufacturer's warranty, if copy of such warranty is annexed hereto; and if not so annexed, Purchaser buys Corbitt Motor Truck as it stands, and no warranty, guaranty of representation as to the Corbitt Motor Truck or any of its equipment is otherwise made or given by Seller.

" The Conditions of this Agreement Are, that delivery of the Corbitt Motor Truck by Seller to Purchaser does not pass title thereto, but both the Corbitt Motor Truck and the Purchaser agree that the title thereto shall not pass by such delivery but are and shall remain vested in and be the property of the Seller and assigns (and any extension or assignment of said notes shall not waive this or any other condition herein contained) until said notes evidencing said installments of purchase price are paid in full.

"Upon any default in the payment of the principal or interest of any of said notes, then any holder of any of the notes then unmatured may at his option declare all of said notes immediately due and payable and the same shall thereupon become immediately due and payable. The Purchaser until said notes are paid in full shall not sell, let, assign, encumber, use for hire or dispose of the Corbitt Motor Truck (without written consent of the Seller) and the purchaser shall keep and maintain the Corbitt Motor Truck in good order and repair. Purchaser shall keep Corbitt Motor Truck free of all liens, taxes, and charges and shall at his expense and in his name cause the Corbitt Motor Truck to be registered and licensed in compliance with law. Upon any default in payment or breach of condition or covenant herein made by the Purchaser, or if the Seller shall deem the security for the payment of said notes intended to be afforded hereby insufficient or unsafe, the Purchaser shall on demand by the Seller forthwith deliver the Corbitt Motor Truck in as good condition as when received by Purchaser upon sale thereof (ordinary wear and tear excepted) to Seller, and should Purchaser fail or refuse upon such demand to deliver the Corbitt Motor Truck as aforesaid to Seller, the Purchaser agrees that the Seller shall have the right without any further notice or demand forthwith to take possession of the Corbitt Motor Truck, wherever found, and for such purpose Purchaser hereby licenses and authorizes Seller to enter any premises of the Purchaser with or without force or process of law, and forthwith take possession of the Corbitt Motor Truck; if Seller shall so take possession of the Corbitt Motor Truck by reason of any default or breach hereof or with respect to said notes by Purchaser, Purchaser agrees that all payments made by Purchaser with respect to the indebtedness represented by said notes shall belong to and be retained by Seller, as liquidated damages for the non-fulfillment or breach of performance of this agreement, for loss in value with respect to the Corbitt Motor Truck, and for the rental value thereof. Seller may, at option by collection, suit or otherwise, enforce payment of said notes, and no suits or legal proceedings with respect thereto shall however, be deemed any waiver of said right of Seller to take possession on default or breach as aforesaid. Upon the Seller so taking possession of the Corbitt Motor Truck, Seller may sell the Corbitt Motor Truck at public or private sale at any time thereafter without any notice to the Purchaser, and if upon such sale the proceeds thereof are insufficient to pay the sums remaining unpaid with respect to said notes, and the expense caused by such repossession, removal, reparation, storage, liens, and sale, any deficiency shall be paid by, and any overplus shall be paid to the Purchaser. Purchaser acknowledges receipt from Seller of a true copy of this agreement.

"In witness whereof, Seller and Purchaser, parties hereto, have hereunto subscribed their signatures and set their seals hereto in duplicate on the day and year first above written.

"CORBITT MOTOR TRUCK COMPANY. [Seal]

"Witnesses: A.W. MARTIN

"If this truck does not prove satisfactory it may be turned back and unpaid notes canceled.

"A.W. MARTIN."

DEFENDANT'S MOTION FOR NONSUIT

"Mr. Dickey: I would like to make a motion for a nonsuit upon the ground that there is no evidence of conversion.

"2. Upon the further ground that an action in trover will not lie, plaintiff's remedy being to bring an action in replevin, or an accounting against defendant, in that it appears from the uncontradicted evidence that the defendant had a mortgage on the alleged property upon which default had been made.

"3. Upon the further ground that the negligence of the plaintiff was the proximate cause of his injury, if any, in that it appears under the uncontradicted evidence that he made no effort to pay this note on the day that it was due.

"4. Upon the further ground that it appears from the evidence that plaintiff has only a qualified or limited interest in the truck, and he has brought the action upon the ground that he is the full absolute owner."

DEFENDANT'S MOTION FOR DIRECTED VERDICT

"The defendant moved that the Court direct a verdict as to the amount due on defendant's uncontradicted counterclaim.

"The defendant moved for a directed verdict as to punitive damages upon the ground that there was no evidence to sustain a finding for punitive damages."

JUDGE'S CHARGE

"Mr. Foreman and gentlemen, you all have heard the pleadings read at the beginning of the trial, some of them here are rather lengthy, so I am going over them briefly, the claims of the respective parties and their contentions, because I have to give you the law in regard to the issues arising out of those contentions, and you have to say what the facts are and come to your conclusion one way or the other as to the various matters.

"Plaintiff alleges here that it owned a truck of the value of $1,500.00 and that the defendant willfully and highhandedly took the truck and converted it to its own use and upon demand failed to deliver the truck back or to pay therefor, and plaintiff alleges that he was damaged as a result thereof from that in the sum of $3,000.00 and he is asking for that at your hands and that the truck be attached and sold to satisfy the judgment.

"In answer to that the defendant denies that there was any conversion on its part or that it is liable to plaintiff for any damages. So that puts the burden upon the plaintiff who has come into Court asserting this claim, of proving it to you by the preponderance or greater weight of the testimony before he can recover. By that the law does not necessarily mean by the greater number of witnesses or the greater quantity of testimony, but the greater truth of it; that testimony, in other words, in which you six men have the greater faith.

"The defendant in its contention alleges that this truck was sold to plaintiff, that for a part of the purchase price $1,200.00 was to be paid by installments of $100.00 each, bearing interest at the rate of six (6) per cent. and a mortgage was executed by plaintiff to the defendant, to secure the same; that there was default in one of the payments and that in pursuance of a provision in the mortgage the truck was taken and was being held pending foreclosure of the mortgage when it was attached by the plaintiff in this action.

"In his counterclaim defendant sets forth practically those same facts further alleging that the mortgage provided that if any one of those notes was not paid, the holder of the mortgage could declare the entire debt due and the defendant now asks at your hands that the plaintiff's claim be dismissed and that it get judgment on the counterclaim for the amount of principal and interest and attorney's fee as provided for in their mortgage.

"Now, before the defendant can have advantage of that at your hands, the burden rests upon it to prove that by the preponderance or greater weight or greater truth of the testimony.

"Now, let us take the plaintiff's claim on the one hand as denied by the defendant on the other.

"The plaintiff alleges that there was a conversion of the property by the defendant through its agent in taking the truck.

"Now, conversion is where one exercises unauthorized dominion over the property belonging to another without the consent of that other and depriving that other of his rights in that property.

"You gentlemen will have to say in this case whether that has been done or whether it has not been done. Even if there was not any default, or if there was default in the payment of the notes or any one of them, there is only one in question that it is claimed that there was a default in, but even if there was default, that would not, under this agreement here, with this provision in it, have given the defendant company the right to go ahead and take that property under the mortgage, because the mortgage provides that even where there is a default in payment, that demand must be made for possession; that was a right that ran to the plaintiff in the case who was the purchaser. The defendant could not set that right aside, unless the plaintiff waived his insistence upon that right. Even if there was a default in that note or a default in the payment of it, the defendant would have to make demand on the plaintiff for the possession before he could legally take that car. If he failed to make such demand for the possession and went ahead and took the car, that would be such an unauthorized act over the property of another that the law would say that that would be a conversion; unless you should believe that the plaintiff by his conduct or by his acts, waived the right to demand. To demand what? That a demand be made on him for possession. In other words, the defendant could have failed to have made demand, but if the failure was waived by the plaintiff, then he could not insist upon damages for failure to demand.

"Whether or not there was such waiver as that, for example, would be for you gentlemen to say and not for me. You have to take all the facts and circumstances of the case and pass on questions like that.

"And, indeed, even if you should come to the conclusion that there was an act of conversion, which, of course, if it existed, would be a wrongful act, still you would have to take the case as a whole and see whether the plaintiff by any acts on his part or by his conduct waived that wrongful act. If he did, of course, he could get no damages out of that wrongful act, if he waived it. Before one could waive an act, one has to know what the act is and the surrounding circumstances of the act. As to whether there was such an act of conversion and if so, whether or not the plaintiff waived it, is for you gentlemen to pass on and not for me. If there was conversion in the last analysis and there was no waiver on the part of the plaintiff, then he would be entitled to actual damages.

"If there was no conversion, he would not be entitled to recover, or if there was conversion and he waived it, he would not be able to recover.

"Now, which of those conclusions you gentlemen come to in the case is entirely for you. You have to view the evidence and say what conclusion you come to.

"Now, if you believe that the plaintiff is not entitled to recover for conversion, then under all the facts of this case, as far as the counterclaim would be concerned, the defendant would be entitled to recover on its counterclaim, and that amount would be $1,200.00, plus six (6) per cent. interest from the 25th of March to date, plus $120.00. I think the way this case has been fought, that $120.00 is reasonable and that is for me to say. That figured out would be $160.48. If there is no objection from the attorneys you can use that figure, that will keep you gentlemen from having to figure it.

"There is no objection so that would be the amount that you would write for the defendant in case you find that plaintiff is not entitled to recover.

"If you find that plaintiff is entitled to recover, here would be your measure of damages. You would take the reasonable market value of the truck at the date of the conversion, if you find there was a conversion, then from that market value, whatever you establish it to be, you would deduct the amount of the mortgage indebtedness, because plaintiff would not be entitled to recover damages for something he did not own. He did not own all the truck. He just owned over and above what the mortgage indebtedness was, because he was suing the party to whom he owed the mortgage indebtedness. What would be the amount of that mortgage indebtedness that would be deducted from that value? It would not be $1,200.00, plus interest, plus attorney's fees. You could not include attorney's fees because at that time, on the day of conversion, if there was a conversion, they could not say it had been put in the hands of an attorney for collection and attorney's fees would not have accrued. It would only be $1,200.00 plus interest up to the day of that conversion, whatever you find that date was. I said you could deduct that amount from the reasonable market value on the day of conversion. The law says to you that in addition to that, that you may deduct that amount from what would be the highest market value of that truck, if such has been proven to you, the highest value at any time in between the day of conversion and the day that we are trying the case, if it should have reached the highest market value during that period, and you are the ones to say if it reached the highest market value and what it is and use that, if you believe that the justice of the case would merit that finding. If not, you would go back to what would be the reasonable market value on the day of conversion. As to which you use, it is left to you gentlemen, after hearing the entire case. That is as far as actual damages would be concerned. That would be the measure, if plaintiff is entitled to recover actual damages.

"If you believe that plaintiff has made out a case of malicious conduct, or conduct so outrageous as to show malice, then you would have to punish this defendant, because anyone who is guilty of acts such as that towards another, should be punished. As to the amount of punishment, the law has no measure for that, except your good judgment and sound common sense, keeping in mind the case that you are trying and viewing it in the light of all the surrounding facts and circumstances, also keeping in mind that what may punish one may not punish another. In a case of this character you don't give punishment when willfulness has been proven, an intentional violation of the duty owed to another, such as I have been charging you all this week, that punishment is given when one willfully violates the duty owed to another, because in this case the measure of actual damages carries with it the remedy if there was an intentional and deliberate act. So, in this case he has to show more than willfulness in order to get punitive damages. Malice is higher in the scale of culpability than willfulness, like negligence is lower in the scale. If something is done in the spirit of revenge or if done with ill-will directed towards a specific person, there you would have malice. Whether or not those things have been proven in this case, is for you to say. If it has not been proven, then you could not give punitive damages. If it has been proven, then you have to give punitive damages.

"Now, your verdict or verdicts, as the case may be, you have to write on the back of the summons and complaint.

"If you believe that the plaintiff is only entitled to actual damages the form of your verdict will be: We find for the plaintiff so much actual damages, writing the amount in words and not in figures, and putting in the words actual damages, so that I will know what you mean, and sign your name under that and put the word `Foreman' under your name.

"If, however, you believe that the plaintiff is also entitled to punitive damages, don't write your name under that first verdict, but leave it as you have written it and write a second verdict under that in this form: We find for the plaintiff so much punitive damages, writing out the amount in words and not in figures, and putting in the words `punitive damages,' so that I will know what you mean there. If you have written both kinds for the plaintiff and have written one under the other like I have indicated, sign your name under the last one of the two and put the word `Foreman' after your name.

"Keep in mind that you cannot write a verdict for punitive unless you have written a verdict for some actual damages.

"If you find for defendant, the form of your verdict will be: We find for the defendant this amount here, $1,360.48. I have put this amount on this paper. That would be on the counterclaim, and under that write your name and put the word `Foreman' under that."

EXCEPTIONS

"1. That the trial Judge erred in not granting defendant's motion for a nonsuit made upon the ground that there was no evidence of conversion:

"The error being that since the undisputed evidence showed: That defendant held past-due chattel mortgage over the truck in question and hence the plaintiff could not recover the truck or damages for the taking of the same, but would have to redeem it by paying the amount due on said mortgage indebtedness, since the defendant had not sold the same under its said mortgage before plaintiff brought his said action.

"2. That the trial Judge erred in failing to grant defendant's motion for a nonsuit made upon the ground that the taking of the truck in the manner shown by the evidence in the case did not amount to a conversion thereof, the undisputed evidence showing that the defendant took possession of the truck when it found the same on the street with no one in charge thereof and immediately thereafter notified plaintiff that he had taken the truck under its mortgage for foreclosure.

"3. That the trial Judge erred in overruling defendant's motion for a nonsuit and in holding, in effect, that the defendant would have to make demand before the taking of the same, and in holding in this connection that the taking of the truck in the manner testified to by the plaintiff was not in itself a sufficient demand for the possession thereof to warrant the seizure of the truck.

"4. Because his Honor erred in not holding on the motion for a nonsuit that there was no evidence of the conversion of the truck, the undisputed evidence showing that the defendant in seizing said truck did not wrongfully deprive the plaintiff of the use thereof, but by seizing the same merely made a constructive demand therefor.

"5. Because his Honor erred in holding on the motion for a nonsuit that the defendant wrongfully seized the said truck when it took possession thereof without having first made a demand for the same, the error being, that since the plaintiff had not alleged in his complaint that the defendant had not made demand for said truck, the question of defendant's failure to make demand was not an issue in the case.

"6. Because his Honor erred in not holding on the motion for a nonsuit that in as much as the undisputed evidence showed that the plaintiff, after the defendant had seized said truck, offered to pay the defendant the past-due installment on the purchase price of the said truck, he, as a matter of law, acquiesced in the taking of the said truck and, as a matter of law, waived his right to a prior demand for the possession thereof.

"7. Because his Honor erred in first permitting and allowing the plaintiff to testify to the cost and expenses of procuring another truck over defendant's objection, to use in his business and in later ruling that said evidence was incompetent without specifically instructing the jury to disregard such testimony, the error being that under the second ruling of the Court such testimony was irrelevant and, therefore, incompetent, the trial Judge erred in receiving the same in the first place and in not directing the jury to disregard it after it had been erroneously admitted, said evidence being highly prejudicial to the rights of the defendant.

"8. Because his Honor erred in allowing the plaintiff to introduce in evidence, over defendant's objection, letter of Corbitt Motor Truck Company to S.C. National Bank, Exhibit No. 15, said objection being made upon the ground that said letter was a transaction between defendant and a third party, and, therefore, irrelevant to the issues raised by the pleadings and was highly prejudicial to the rights of defendant.

"9. Because his Honor erred in not directing a verdict for the defendant on its undisputed counterclaim, the error being that in refusing to do so, he held, in effect, that defendant's right to recovery in this action on contract was contingent upon plaintiff's right of recovery on alleged tort.

"10. Because his Honor erred in charging the jury as follows: `Now if you believe that the plaintiff is not entitled to recover for conversion, then under all the facts of this case, as far as the counterclaim would be concerned, the defendant would be entitled to recover on its counterclaim, and that amount would be $1,200.00, plus six (6) per cent. interest from the 25th of March to date, plus $120.00.'

"The error being in making the defendant's right to recover the amount due on its notes and mortgage depend upon the failure of the plaintiff to recover for the alleged conversion of the truck, since the undisputed evidence showed that the defendant was entitled to a judgment on its counterclaim irrespective of the plaintiff's right to recover against the defendant for its alleged wrongful trespass upon his right of possession of said truck.

"11. Because his Honor erred in charging the jury that the measure of plaintiff's damages was the difference between the market value of the truck at the date of the seizure thereof and the amount due to the defendant on its mortgage.

"The error being, that, in as much as plaintiff's action was for a wrongful invasion of his right of possession, it was error to make as the measure of damages the market value of the truck, title to which was in the defendant with the right of possession in the plaintiff until demand was made therefor.

"12. Because his Honor erred when, in charging as to the measure of damages, that the plaintiff might be entitled to, he charged as follows: `It would only be $1,200.00 plus interest up to the day of that conversion, whatever you find that date was. I said you could deduct that amount from the reasonable market value on the day of conversion. The law says to you that in addition to that that you may deduct that amount from what would be the highest market value of that truck if such has been proven to you, the highest market value at any time between the day of conversion and the day that we are trying the case, if it should have reached the highest market value during that period, and you are the ones to say if it reached the highest market value and what it is and use that, if you believe that the justice of the case would merit that finding.'

"The error being in instructing the jury that in addition to the reasonable market value of the truck on the day of conversion, the plaintiff would be entitled to the highest market value of the truck at any time between the day of the conversion and the day of the trial of the action; whereas, under the law the measure of damages was either the market value of the truck on the day of conversion or the highest value thereof at any time between the day of conversion and the day of trial.

"13. Because his Honor erred in charging the jury as follows: `If you find that plaintiff is entitled to recover, here would be your measure of damages. You would take the reasonable market value of the truck at the date of the conversion, if you find there was conversion, then from that market value, whatever you establish it to be, you would deduct the amount of the mortgage indebtedness, because plaintiff would not be entitled to recover damages for something he did not own. He did not own all the truck. He just owned over and above what the mortgage indebtedness was, because he was suing the party to whom he owed the mortgage indebtedness, what would be the amount of that mortgage indebtedness, that would be deducted from that value.'

"The error being that the measure of damages is not the `market value of the truck at the date of the conversion,' but the measure of damages is and was the use of the truck from the date of the seizure thereof until the defendant might have made demand therefor as provided in its mortgage.

"14. Because his Honor erred in failing to direct a verdict in favor of the defendant as to punitive damages, the error being there was no evidence upon which to base such a verdict.

"15. Because his Honor erred in charging the jury as follows: `If you believe that plaintiff has made out a case of malicious conduct, or conduct so outrageous as to show malice, then you would have to punish this defendant, because anyone who is guilty of acts such as that towards another, should be punished.'

"The error being that the charge, in effect, was a direction to the jury to find punitive damages, that they had to find punitive damages, whereas, he should have charged them that they could, or may, find punitive damages.

"16. Because his Honor erred in charging the jury as follows: `Whether or not those things have been proven in this case, is for you to say. If it has not been proven, then you could not give punitive damages. If it has been proven, then you have to give punitive damages.'

"The error being that the trial Judge instructed the jury that they had to give punitive damages, if they found certain facts, whereas, he should have charged them that they could, or may, find punitive damages, it being in their discretion and not compulsory even though they found the facts referred to by the trial Judge.

"17. Because his Honor erred in submitting to the jury as one of the issues for them to pass upon whether or not the plaintiff had made default in the condition of his notes and mortgage, when the undisputed evidence showed the plaintiff was in default as to the payment of his note when the defendant seized the truck and in not instructing the jury as a matter of law the plaintiff was in default."

Messrs. A.F. Spigner, and James S. Verner, for appellant, cite: As to conflicting provisions of document: 110 S.C. 307; 74 S.C. 193. As to construing separate contracts together: 70 S.C. 494. As to conversion by mortgagee who seizes mortgaged property: 146 S.C. 257; 11 C.J., 590. Failure of trial Judge to specifically instruct jury to disregard evidence held to be incompetent is prejudicial error: 117 S.C. 44; 89 S.C. 535.

Messrs. T.P. Taylor, John W. Crews, and John Hughes Cooper, for respondent, cite: " Conversion": 45 S.C. 388; 23 S.C. 49; 2 Strob. Eq., 370; 38 S.E., 451; 103 S.E., 766. Cases distinguished: 146 S.C. 257. Evidence of malice on part of defendant admissible: 136 S.E., 298. Seizure of mortgaged property estops foreclosure suit: 22 S.E., 789. Measure of damages for conversion: 89 S.C. 554. Where any evidence to support plaintiff's action nonsuit not granted: 31 S.E., 1.

January 29, 1929. The opinion of the Court was delivered by

MR. ACTING JUSTICE C.J. RAMAGE.

Some time in the latter part of March, 1927, A.W. Martin, representative of Corbitt Motor Truck Company of Henderson, N.C., defendant, and S.K. Young, plaintiff, entered into negotiations for the sale to plaintiff of a truck, known as Corbitt Truck Model 21. It was agreed between Martin and Young that the purchase price of the truck was to be $1,327.00, delivered in Columbia, instead of $1,570.00 f. o. b. Henderson, N.C.; payable $127.00 cash, and twelve notes for $100.00 each, bearing 6 per cent. interest, and secured by a conditional sale agreement. When Martin submitted these papers to defendant company, new papers were prepared, with an additional sum of $11.00 added to each, to cover finance charges, and Martin was instructed to have Young sign them.

When Martin approached Young with a request to sign the new papers, Young refused to do so; whereupon on March 25, 1927, Martin changed each note from $111.00 to $100.00, and Young signed them. The following was written on the bottom of the "Conditional Sale Agreement": "If this truck does not prove satisfactory it may be turned back and unpaid notes canceled. A.W. Martin."

The notes and conditional sale agreement were all dated March 25, 1927. The notes contain the following: "The express condition of purchase and sale of Model 21 Corbitt Truck No. 217043, for which this note is given, is such that the title and ownership, notwithstanding delivery, does not pass from said Corbitt Motor Truck Company, until this note and interest are paid in full; and if same should become due and remain unpaid, or any portion of the same Corbitt Motor Truck Company, or any of its agents, are hereby authorized to enter upon our premises, or wherever it may be found, and take possession of said Model 21 Corbitt Truck No. 217043, and sell same either at public or private sale, and place proceeds as a credit on this note. This note is to become due and payable upon the removal of the maker from the County in which they reside, or whenever the holder deems itself insecure."

The conditional sale agreement contains the following: "Upon any default in payment or breach of condition or covenant herein made by the Purchaser, or if the Seller shall deem the security for the payment of said notes intended to be afforded hereby insufficient or unsafe, the Purchaser shall on demand by the Seller, forthwith deliver the Corbitt Motor Truck in as good condition as when received by Purchaser upon sale thereof (ordinary wear and tear excepted), to Seller, and should Purchaser fail or refuse upon such demand to deliver the Corbitt Motor Truck as aforesaid to Seller, the Purchaser agrees that the Seller shall have the right without any further notice or demand, forthwith to take possession of the Corbitt Motor Truck, wherever found, and for such purpose Purchaser hereby licenses and authorizes Seller to enter any premises of the Purchaser with or without force or process of law, and forthwith take possession of the Corbitt Motor Truck; if Seller shall so take possession of the Corbitt Motor Truck by reason of any default or breach hereof, or with respect to said notes by Purchaser, Purchaser agrees that all payments made by Purchaser with respect to the indebtedness represented by said notes, shall belong to and be retained by Seller, as liquidated damages for the non-fulfillment or breach of performance of this agreement, for loss in value with respect to the Corbitt Motor Truck, and for the rental value thereof."

On April 7th, the following telegram was sent:

"CFB 162 29 1927 Apr. 7 AM. 11:30

"Henderson N Car 7 1056A "S.K. Young, Columbia, S.C.

"Unless you settle according to our original contract, we refuse to sell you, do not use the truck another trip unless you can settle according to the original agreement.

"CORBITT MOTOR TRUCK CO."

On April 7, 1927, defendant wrote plaintiff a letter the substance of which was as follows: There is evidently a misunderstanding regarding the sale of the Corbitt Model to you by Mr. Martin; Martin told us about a week ago that the truck was sold on a basis of $1,327.00 plus finance charges and insurance on the deferred balance; this morning we received the twelve notes for $100.00 each, and we sent you a telegram (see above); until the matter can be settled on a satisfactory basis, do not use the truck, and we are instructing Mr. Martin to see you without further delay, and repossess the truck or collect the finance charges based on the original agreement. The letter goes on to state the reasons for not agreeing to the papers as signed.

On April 21, 1927, defendant sent the note to Carolina National Bank, the said note was not paid on the 25th, and on April 26th defendant wrote Martin, who was temporarily at Charleston, S.C. a letter as follows:

"April 26, 1927.

"Mr. A.W. Martin, "Berkley Court, "Charleston, S.C.

"Dear Sir:

"We enclose herewith note of S.K. Young, $100.50 due April 25th. We wish you to proceed to Columbia at our expense and collect this note and remit us proceeds; if you cannot collect it, then proceed to take possession of the truck at once, as we do not propose to allow him to use the truck if he is not going to pay us for it. Please give this your prompt attention.

"Very truly, "CORBITT MOTOR TRUCK CO., "R.J. CORBITT, President."

On April 27, 1927, defendant wrote plaintiff the following letter:

"April 27, 1927.

"Mr. S.K. Young, "1318 Assembly St., "Columbia, S.C.

"Dear Sir:

"Your note for $100.50 due April 25th, has been returned to us unpaid by the bank, and we write to ask that you mail us check to cover this at once or pay our Mr. A.W. Martin when he calls on you in regard to same. This is very important and we ask your best attention.

"Very truly, "CORBITT MOTOR TRUCK CO., "N.R. PARHAM, Cashier."

It appears that Martin got the letter inclosing the note on the 27th, and on the morning of the 28th, and very early in the morning, certainly before the stores opened, he found the truck standing in front of the place of business of plaintiff, took it away, and notified the police of his having the truck; the call to police department came about 7:00 o'clock in the morning.

Plaintiff brought this action for $3,000.00 damages.

The first question before the Court is: Was the method employed by Martin the proper method to get possession of the truck?

This leads us to a construction of the note and conditional sale agreement set out above; in the note no precedent demand is necessary, while in the conditional sale agreement it is necessary.

Now why there should be one provision in one paper, and quite a different provision in the other, we cannot even surmise.

It does seem that good business judgment should have dictated that there ought to be uniformity in the procedure of retaking the truck.

But we have nothing to do with why this contradiction appears; we must judge the legal consequences that follow.

We observe:

1. That the papers were prepared by defendant and the blanks furnished by it.

2. That these papers were evidently well understood and were in constant use by defendant.

3. That defendant had possession of both these papers and was in a position to know exactly their contents and provisions, and in any case of doubt had the papers before it for use and inspection.

4. On April 27, 1927, defendant wrote plaintiff to mail it a check or to pay A.W. Martin. In case plaintiff had desired to pay Martin, by Martin's own statement, he had no opportunity to do so, as Martin was in Charleston, and as soon as he got back to Columbia, without any delay he seized the truck. At least, according to defendant's letter plaintiff should have been given the opportunity of making payment to Martin.

In construing the two documents above referred to, the note and the conditional sale agreement, we must read them together. By so reading them in the light of facts and circumstances of this case, defendant was compelled to make demand before it could seize the truck. This provision regarding making demand is in the paper signed by Corbitt Motor Truck Company, and the said company could not take the truck without making demand.

Especially is this position strengthened by the letter in which defendant stated that plaintiff might pay A.W. Martin and then gave plaintiff no opportunity to pay the said Martin before the seizure of the truck.

When defendant by its agent seized the truck without making demand, it was a question for the jury to say whether plaintiff was entitled to any actual and punitive damages. The right to the possession of personal property is jealously guarded by the law, and one who deprives another of the possession of property, his action must be supported by legal grounds; and if no such legal grounds exist, the party so taking the property is liable in damages.

It is not necessary to cite authority for this position, as the principles are plain and of everyday application.

The matter of conversion was purely a question for the jury in this case. The following is a short statement of the law on this question: "Conversion may arise either by a wrongful taking of the chattel or by some other illegal assumption of ownership, by illegally using or misusing it, or by wrongful detention." The above was quoted with approval in the case of Ladson v. Mostowitz, 45 S.C. 388, 23 S.E., 49, from the case of Harris v. Saunders, reported as a note in 2 Strob. Eq., 370. As was stated by Judge Gary, in the case of Holliday v. Poston, 60 S.C. 109, 38 S.E., 451 (quoting 2 Strob. Eq., 370): "Perhaps more accurately defined by another writer thus; a conversion seems to consist in any tortious act, by which the defendant deprives the plaintiff of his goods, either wholly or but for a time. Any act of the defendant inconsistent with the plaintiff's right of possession, or subversive of his right of property, is a conversion."

A later definition: "A `conversion' is the unlawful exercise of dominion over the property of another." Sherer-Gillett Co. v. Moore-Barnes Co., 114 S.C. 387, 103 S.E., 766.

Because his Honor erred in first permitting and allowing the plaintiff to testify to the cost and expenses of procuring another truck, over defendant's objection, to use in his business, and in later ruling that said evidence was incompetent, without specifically instructing the jury to disregard such testimony: the error assigned being that under the second ruling of the Court such testimony was irrelevant, and, therefore, incompetent; that the Judge erred in receiving the same in the first place, and in not directing the jury to disregard it after it had been erroneously admitted, said evidence being highly prejudicial to the rights of the defendant.

"By Mr. Taylor:

"Q. Since your truck has been out of your hands, have you had to get another truck?

"Mr. Dickey: We object to that. He has not alleged any special damages. I think he has to allege them to prove them.

"The Court: That would not be special damages. Any damages that would naturally grow out of another's wrong, are not special damages.

"Q. Since your truck has been taken, have you been out of the use of it? A. Yes, sir.

"Q. Mr. Young, have you had to hire a truck since then to use because of this truck being out of your possession? A. Yes, sir.

"Q. Now, you have had the use of trucks, you have had to use them all the time. What is a truck like that reasonably worth a day?

"Mr. Dickey: We object to that testimony upon the ground that he is attempting to prove special damages and special damages have not been alleged.

"The Court: That would not be special damages. That is one of the measures of damages that the Supreme Court has laid down in a case; a wrong has been done by taking a man's property; the reasonable rental for a like truck as near as possible under the circumstances, without a driver, without oil and without gas.

"A. That depends on how long a trip and so on, how much the truck would have to run. It would be from $10.00 to $30.00 a day, that is what I have paid. I have paid one man over $1,500.00 for a truck.

"Q. What I want is during this period of time, you furnishing your own man, gasoline and oil, ordinarily what would a truck rent for, make us one figure? A. You mean a day?

"Q. Yes. A. From $10.00 to $30.00 a day according to what you have to do.

"Q. In your kind of business? A. Running around here in Columbia, it wouldn't be over $10.00 a day; to go from here to Asheville, it would be $30.00 a day.

"Mr. Dickey: We object to all that testimony on the ground that it is highly speculative. He had not said he had to go there.

"Q. How long have you been out of the use of this truck? A. Ever since April 28th, up to now.

"Q. What was the truck worth when they took it from you? A. I don't know. Mr. Martin told me it was worth $1,600.00 and something delivered here. Corbitt Motor Truck Company wrote me it was worth $1,500.00.

"Mr. Dickey: We object, the letter is the best evidence.

"Witness: I don't know what it is worth. I paid $1,327.00 for it."

Thereafter the following appears in the record:

"The Court: I have been thinking over something. Do I understand that this truck was taken by the defendant on the 28th of April, and that he immediately attached it on the 28th?

"Mr. Spigner: Yes, sir.

"The Court: After he attached it the rent could not run. That would be tying it up in the law and I have been thinking of that ever since. If they attached it the same day, it wasn't in their power to turn the truck back.

"(Argument by Mr. Cooper on this point.)

"The Court: He would not be entitled to those damages. I think that would be allowing one to take his act of calling on an arm of the Court in taking the property out of the control of the other party to do anything except give a bond. I don't see why when you act that you can turn around to the other fellow and say `I had a right to do this, if I had not done this, I would have been entitled to those special damages, but I have done this, therefore, you have got to do something else,' which the law does not necessarily say you have got to do, but it is optional with you. He took the risk of getting himself out of those kind of damages when he attached this truck to get jurisdiction of it, which risk he ran and the Court cannot help him.

"That is the fair justice of the thing. I have been thinking about it 15 minutes. So it was his act that put it in the hands of the law and took it out of the control of the other party to turn the truck back and keep damages from flowing.

"Mr. Cooper: The Sheriff, upon our affidavit, got out an attachment which was directed to attach any and all property of the Corbitt Motor Truck Company within its jurisdiction, or so much thereof as was necessary to protect this judgment. The Sheriff attached two trucks of the Corbitt Motor Truck Company. We released one on bond and chose to release the other.

"The Court: They had a right to release neither or both. The act of getting jurisdiction by attaching this truck would not be apt to minimize damages. That act is optional. He has still got his measure of damages which could do justice in the case, which could be conversion, the highest market value necessary to do justice. I don't see why I should let it in. Strike out all of this about renting another truck. I think I had better keep that out if there is doubt about it. He has got his measure."

It will be observed that the attorney for the appellant in objecting to the testimony did not state the ground upon which his Honor ruled out the said testimony; as the objection was that they were special damages, while his Honor ruled the testimony out on the ground that plaintiff had attached the truck in question, and, therefore, had taken the truck out of the control of the other party and could not claim damages as a result thereof.

It is a well-settled principle that, unless a party states a proper ground of objection to testimony, the objection will not be considered on appeal.

But, furthermore, we think his Honor properly eliminated this testimony from the case, under the following principles laid down by Mr. Justice Cothran in Templeton v. Railway, 117 S.C. at page 53, 108 S.E., 363: Was there an entirely adequate explanation and correction of the error? Was the erroneous testimony identified? Was the substance of the testimony given with an explanation to the jury of the error in admitting it and a direction to erase it from their mind?

The eighth exception charges error in allowing in evidence the letter of appellant to the Carolina National Bank, wherein appellant added a postscript, inclosing the note for collection, stating that if this party does not pay this note promptly please give us the name of a live active attorney to whom we can send it for collection. We think that this note having been sent to the bank for collection, this statement in the way of a postscript was competent on the question of punitive damages, and also under the very clear opinion of Mr. Justice Blease in the case of Nettles v. Nettles, 138 S.C. 318, 136 S.E., pages 298 and 299.

As to Exceptions 11 and 13:

The Court laid down the rule controlling the measure of damages plaintiff is entitled to in this action for conversion, in the case of Sizer Co. v. Dopson, 89 S.C. 535, 72 S.E., 464, wherein Associate Justice Woods said, speaking for the Court: "In actions for conversion or for the taking and detention of personal property the general rule is that the measure of damages is the value of the property with interest thereon, and the jury may give the highest value up to the time of the trial."

In the case of Walters v. Laurens Cotton Mills, 53 10- 11 S.C. 155, 31 S.E., 1, Judge Pope had this to say:

"It is now settled law that, if there is any evidence — legal evidence — tending to prove the cause of action as alleged by plaintiffs, it is not the duty of the Judge to grant a nonsuit; the issue must go to the jury."

We see no error in his Honor's charge; if appellant desired any explanation of the matters set out in the exceptions to the charge, and if, furthermore, they desired any fuller statement of the law, these matters ought to have been called to his Honor's attention at the time; failing to do so by a proper request, appellant cannot now question the same, especially when his Honor charged the law as ably and fairly as he did in this case.

We, furthermore, see no error in the failure to direct a verdict or grant a nonsuit.

It is the judgment of this Court that the exceptions be dismissed and the judgment of the lower Court be affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.

MR. JUSTICE CARTER did not participate.

MR. JUSTICE COTHRAN (dissenting):

I dissent from the conclusions announced in the opinion of Mr. Acting Associate Justice Ramage for the reasons which follow:

In the "Statement," a part of the Transcript of Record, this appears: "The purpose of the action was to obtain judgment for the sum of $3,000.00, as damages for the alleged wrongful conversion of a certain Corbitt Motor Truck."

This statement is sustained by the allegations of the complaint to the effect: "That the above-named defendant possessed itself of the following personal property belonging to and owned by the plaintiff (describing the truck), of the value of $1,500.00, and being so possessed thereof the defendant on or about the 28th day of April, 1927, willfully, wantonly, high-handedly and wrongfully converted the said truck to its own use, and after demand made therefor before the commencement of this action fails and refuses to deliver or pay therefor," to the damage of the plaintiff $3,000.00.

We begin the discussion then on the perfectly solid ground that the cause of action is a conversion by the defendant of the plaintiff's property.

The undisputed facts are these:

The defendant, Corbitt Company, had a representative in Columbia by the name of Martin; on March 25, 1927, Martin and the plaintiff, Young, agreed upon a sale and purchase of the truck in question, at the price of $1,327.00 Young agreed to and did make a cash payment of $127.00, leaving $1,200.00 remaining unpaid; for this he gave twelve notes of $100.00 each, the first of which was payable 30 days thereafter on April 25, 1927, and the other eleven on the same day of the following months, May, June, July, August, September, October, November, December, January, 1928, February, and March. The notes bore 6 per cent. interest from date and provided for attorney's fees upon the usual conditions.

The notes were identical in terms, with the exception of the maturity dates. We are concerned mainly with the note that matured on April 25, 1927, a copy of which appears in the report of the case. Particular attention is called to this provision in the note: "The express condition of purchase and sale of Model 21 Corbitt Truck No. 217043 for which this note is given, is such that the title and ownership, notwithstanding delivery, does not pass from said Corbitt Motor Truck Company, until this note and interest are paid in full; and if same should become due and remain unpaid, or any portion of the same, Corbitt Motor Truck Company or any of its agents, are hereby authorized to enter upon our premises, or wherever it may be found, and take possession of said Model 21 Corbitt Truck No. 217043 and sell same either at public or private sale, and place proceeds as a credit on this note. This note is to become due and payable upon the removal of the maker from the County in which they reside, or whenever the holder deems itself insecure." It will be observed that the right to repossess the mortgaged property (the reservation of title contract being equivalent to a mortgage), upon breach of condition, was not made to depend upon a previous demand of possession by the mortgagee; the breach of condition provided for was the default in the payment of the note, nothing else; upon the happening of this event the right to repossess was absolute and unlimited.

At the same time the parties executed what is denominated a "Conditional Sales Contract," which also appears in the report of the case. Particular attention is called to the following provisions: " The conditions of this Agreement Are, that delivery of the Corbitt Motor Truck by Seller to Purchaser does not pass title thereto, but both the Corbitt Motor Truck and the title thereto shall not pass by such delivery, but are and shall remain vested in and be the property of the Seller and assigns (and any extension or assignment of said notes shall not waive this or any other condition herein contained) until said notes evidencing said installments of purchase price are paid in full." Among the covenants, the breach of which justified a repossession of the property, were that the purchaser shall not sell, let, or incumber the property and should keep it free from all liens, taxes and charges. It provided also that the right to repossess should arise upon default of payment of any note, upon breach of any condition or covenant, and if the seller shall deem the security for the payment of the notes insufficient. The provision is as follows: "Upon any default in payment or breach of condition or covenant herein made by the Purchaser, or if the Seller shall deem the security for the payment of said notes intended to be afforded hereby insufficient or unsafe, the Purchaser shall on demand by the Seller forthwith deliver the Corbitt Motor Truck in as good condition as when received by Purchaser upon sale thereof (ordinary wear and tear excepted) to Seller, and should Purchaser fail or refuse upon such demand to deliver the Corbitt Motor Truck as aforesaid to Seller, the Purchaser agrees that the Seller shall have the right without any further notice or demand forthwith to take possession of the Corbitt Motor Truck, wherever found, and for such purpose Purchaser hereby licenses and authorizes Seller to enter any premises of the Purchaser with or without force or process of law, and forthwith take possession of Corbitt Motor Truck."

It will be observed that there is a difference in the note and in the contract in reference to repossession. The contention of the plaintiff is that the provision in the contract requires a previous demand and that the provision for repossession in the note, which makes no reference to a previous demand, is controlled by the provision in the contract which requires it.

It appears that after the sale was reported to the company by Martin, with transmission of the notes and contract, the company was dissatisfied with the terms, insisting that Young bear the financing expenses connected with the unmatured paper. Inasmuch as the company accepted the notes and the contract and when the first note fell due transmitted it to the South Carolina National Bank for collection, I think that any reference to this disagreement is unnecessary and entirely negligible.

On April 21, 1927, four days before the maturity of the note, the company forwarded the note to the South Carolina National Bank for collection. It was not paid at maturity, although by its terms payable at that bank, and was returned unpaid to the company.

On April 26th the company forwarded the note to Martin, who was then in Charleston, directing him thus: "We wish you to proceed to Columbia at our expense and collect this note and remit us proceeds, if you cannot collect it, then proceed to take possession of the truck at once, as we do not propose to allow him to use the truck if he is not going to pay us for it. Please give this your prompt attention."

On April 27th the company wrote to Young: "Your note for $100.50 due April 25th, has been returned to us unpaid by the bank and we write to ask that you mail us check to cover this at once or pay our Mr. A.W. Martin when he calls on you in regard to same. This is very important and we ask your best attention."

It appears that this letter was not received by Young until after Martin had repossessed the truck, though on the same day, April 28th.

With a zeal, perhaps "not according to knowledge," Martin having returned from Charleston to Columbia, on the morning of the 28th, before Young had opened his place of business, took possession of the truck which was standing in front of Young's establishment and drove it off. He notified the Sheriff and Chief of Police that he had the car, thinking that Young would conclude that some one had stolen it and give the officers trouble in locating it.

On the same day, the 28th, the present action was commenced and the truck attached, as the property of the company, in order to acquire jurisdiction to that extent at least. The company gave bond, the attachment was released and the truck returned to the company. What disposition was made of it does not appear in the record.

At the close of the testimony for the plaintiff, the defendant moved for a nonsuit upon the grounds which appear in the record. The motion was refused.

At the close of all of the testimony the defendant moved for a directed verdict upon grounds similarly appearing. This motion was also refused.

After the charge of the trial Judge, the jury rendered a verdict in favor of the plaintiff for $300.00 actual damages and $500.00 punitive damages. From the judgment entered upon this verdict, the defendant has appealed.

I shall confine myself to what I consider the determinative issue in the case, that is: The defendant's motion for a nonsuit should have been granted upon the ground that there was no evidence tending to show a conversion of the plaintiff's property by the defendant.

The plaintiff seeks to recover principally upon the ground that the defendant's repossession of the property was without warrant of law, in that it had not been preceded by a demand for the possession of the truck. It is conceded, and the presiding Judge so held, that the plaintiff had made default in the payment of the note due April 25th. In overruling the motion for a nonsuit, he held:

"I am going to have to rule in this case in this way: This man on the stand said he sent a man to the bank, so he knew where the note was payable. He cannot get around that. He was going to the bank, to pay the note and whether he went or not, he wasn't there when the note should have been there, because he said he sent him later with the money. They would not have had the note at a useless time.

"I am going to have to hold in this case that there was default and it turns on this question of equitable or partial or limited interest. I am certain about that and I am going ahead."

That being true, as the majority of the Court held in the case of General Motors Acceptance Corporation v. Hanahan, 146 S.C. 257, 143 S.C. 820: "Whatever may have been the earlier holdings of our Courts on this question, the later decisions all tend to the view that the title passes to the mortgagee only upon condition broken." (In opposition to the view of the writer, in that case, that it passed upon execution and delivery of the mortgage, the right of possession remaining with the mortgagor until condition broken.) Certainly then, upon the plaintiff's default in the payment of April 25th, the title to and right to possession of the truck passed to the company; and the failure anticipated the maturities of all of the other notes.

The question whether, taking the two papers together, the note and the contract, a demand before repossession was necessary, is not free from doubt. The note permits such repossession without a demand; the contract might be construed, though that is not clear, as permitting such repossession only after demand.

I think that there is much force in the argument of counsel for the defendant:

"That there is no conflict, but that the one supplements the other, appears from this: The notes (folio 43) give the defendant the right to seize the truck only on default of payment, while the sales agreement gives the right to seize the truck (1) upon default in any payment, (2) or breach of condition or covenant made by the purchaser, (3) or if the seller shall deem the security for the payment of the notes intended to be afforded hereby insufficient or unsafe. The covenants and conditions referred to in No. 2, above, are that the purchaser shall not sell, let or encumber the truck, and that he should keep the same free of all liens, taxes and charges, and shall cause the same to be registered and licensed in accordance with law.

"In other words, before the defendant could have seized the truck for a breach of any of the covenants, or conditions contained in the conditional sales agreement, it would have had to make demand for the truck, but not so when the seizure is made by reason of a failure to pay one of the notes. * * * As pointed out above there is no conflict between the two, the conditional sales agreement being supplementary to the notes, and giving to the defendant the additional right to seize the car upon breach of any of the covenants in the conditional sales agreement. The giving of these additional rights in no way limited the rights given in the notes. It will be noticed that the reason why the defendant seized the car in question was to enforce payment of the notes, and not because of a breach of any of the covenants or conditions in the sale agreement. * * * Construing the notes in this case and the conditional sales contract together, then we see that the defendant, upon breach of the conditions in the note, has the right to seize the truck in question without making a prior demand therefor, and by so doing he committed no wrong against the plaintiff."

That contemporaneous instruments must be construed so as to harmonize apparently conflicting provisions has long been the rule. Elders v. Feutrel, 110 S.C. 307, 96 S.E., 541; Ex parte Powell, 74 S.C. 193, 54 S.E., 236; Marlboro Wholesale Grocery Company v. Brooks, 70 S.C. 494, 50 S.E., 186; Kammer v. K. of P., 91 S.C. 572, 75 S.E., 177.

But assuming that the defendant, although it was seized of the legal title to the property and legally entitled to the possession, had no right to repossess it without a previous formal demand upon the plaintiff for its delivery the pivotal inquiry is whether such repossession constituted a conversion by the mortgagee. At first blush it seems illogical that the plaintiff, who had lost both title and right of possession to the truck, can maintain an action for the conversion of property which belonged to the defendant. The theory of conversion is that the defendant has, without authority of law, taken possession of property which belonged to the plaintiff; not that he has taken possession of property which belonged to himself.

The inquiries are pertinent: What right of the plaintiff was invaded by the alleged unlawful repossession, and what was the remedy of the plaintiff for such invasion?

The utmost extent of the plaintiff's interest invaded, under the assumption upon which I am proceeding, was the right to retain possession until the plaintiff made a demand for the delivery of the truck. The invasion of this right was a trespass, remediable by an action for damages. It could in no possible view have constituted a conversion, entitling the plaintiff to the incidents of that relief, the value of the property (which belonged to the defendant), with interest from the date of the conversion.

In 38 Cyc., 2020, it is said: "An unauthorized taking of goods, out of the possession of the owner, with intent to appropriate them to the taker's use, is a conversion; but there is no conversion for which trover will lie, where one takes who is entitled to possess, even though he obtain it by force or constructive trespass."

The plaintiff had, of course, his equity of redemption. This right was not at all affected by the alleged premature repossession, for the property was still in the hands of the defendant, who had done nothing to impair the right of redemption.

I think that the very recent case of General Motors Acceptance Corporation v. Hanahan, 146 S.C. 257, 143 S.E., 820, is conclusive of the proposition that the defendant has not been guilty of the tort of conversion. It is there held by the unanimous opinion of the Court (upon this point): "Ordinarily, the question of the extinguishment of the lien of a chattel mortgage arises in a controversy between the mortgagor and the mortgagee, in an effort by the mortgagor to establish a conversion by the mortgagee of the mortgaged chattel. This he may succeed in doing by showing that the mortgagee, after seizure of the chattel upon condition broken, has converted the chattel to his own use; or has sold it at private sale; or has irregularly sold it at public sale; or has disposed of it beyond the mortgagor's reach; or has destroyed it; or has negligently suffered it to be destroyed; or in any other way annihilated or impaired the exercise of the mortgagor's equity of redemption. If none of these acts has been committed, and the chattel is still in the possession of the mortgagee, the mortgagor's remedy is limited to the enforcement of his equity of redemption."

The same conclusions were reached by the Alabama Supreme Court in the case of Harmon v. Bank, 186 Ala., 360, 64 So., 621: "Under the theory of mortgages prevailing in this State, nothing can be clearer than the proposition that after default the legal title of the mortgagee is perfect. Indeed, foreclosure adds nothing to the legal title, and its only office and value is to cut off the equity of redemption. The mortgagee's legal title carries, of course, the right of possession, and, in the case of chattels, possession taken by the mortgagee after default leaves in the mortgagor no interest except an equity of redemption — which is cognizable and enforceable only in a Court of Equity."

It is true that in the Hanahan case, the mortgagee was in possession of the chattel by consent of the mortgagor, but that distinction does not make a difference in the case at bar. It does not alter the conclusion that there has been no conversion. In the case at bar the plaintiff retained his right of redemption, and also had, what the mortgagor in the Hanahan case did not have, a cause of action for the technical breach of his evanescent right of possession until demand be made.

In Powell v. Gagnon, 52 Minn., 232, 53 N.W., 1148, the Court said: "Upon a conversion of the property by the mortgagee the mortgagor is entitled to recover the value of his interest, which is the difference between the whole value of the property and the amount of the debt for which it is security. If the mortgagee sell and deliver the property to another, whether under void proceedings to foreclose or otherwise, the mortgagor may treat it as a conversion, and bring the mortgagee to account for it. It is not so, however, in an abortive attempt to foreclose, in which the mortgagee bids in the property, and still retains the possession. In such case the void foreclosure proceedings do not affect the mortgage, nor the rights of the parties in the property, nor their relations to each other."

In Southwick v. Himmelman, 109 Minn., 76, 122 N.W., 1016, it is held that: "If the foreclosure was unauthorized and wrongful, and, therefore, unlawful [in that case it was attempted before default], defendant converted the property without right, and is liable in trover. Jones on Chattel Mortgages, 437. The rule would be different if the right of foreclosure in fact existed and the foreclosure proceedings were merely defective in form."

There is no conversion in the absence of a wrongful appropriation or of intent to make a wrongful appropriation. Greencastle v. Martin, 74 Ind., 449, 39 Am. Rep., 93.

"A mortgagee is guilty of conversion when he takes possession of the mortgaged property before he is entitled to under the terms of the mortgage and sells it." 11 C.J., 589. "And if he (the mortgagee) is guilty of trespass in requiring possession, he must respond in damages to the mortgagor." 11 C.J., 559.

The liability of the defendant, for trespass, under the circumstances, is recognized in the cases of Chase Brothers Piano Co. v. Conners, 182 Ill. App., 418; Meyerfield Bloom Co. v. Roberts, 14 Ky. Law Rep., 473; Abramson v. Patts, 69 Misc. Rep., 64, 125 N.Y.S., 1012.

In an action for trespass, the damages to which the plaintiff would be entitled would represent the value of the interest invaded; the right to hold the truck until demand be made. "The value of the plaintiff's interest is the worth of his special property in the article." Russell v. Butterfield, 21 Wend. (N.Y.), 300. That certainly would not be measured by the value of the truck plus interest.

The rule as to the measure of damages in cases of conversion sufficiently demonstrates the fallacy of one being entitled to damages based upon an alleged conversion of another person's property.

In the case of Sizer Co. v. Dopson, 89 S.C. 535, 72 S.E., 464, the Court said (quoted in the opinion of Justice Ramage): "In actions for conversion or for the taking and detention of personal property the general rule is that the measure of damages is the value of the property with interest thereon, and the jury may give the highest value up to the time of the trial."

"In trover the measure of damages is the fair, reasonable value of the property converted, which will be presumed to be either what it was worth on the market, irrespective of the price paid for it, or the amount it was subsequently sold for, or what it was actually worth, if it had no market value." 39 Cyc., 2092.

This naturally assumes that the property belonged to the plaintiff; how it is logical or possible for the value of the property, to which the defendant had title and the right to possession, can be made the criterion of the plaintiff's damages for an invasion of his rights, is inconceivable to me.

I think that the true rule is this: If the mortgagee takes possession of the chattel, without the consent of the mortgagor, or in an unlawful way, and retains possession, having done nothing to impair the mortgagor's right of redemption, the mortgagor may exercise that right, and also have a cause of action for the unlawful taking, but not a cause of action for conversion, for there has been none; if he takes possession with or without the consent of the mortgagor, and acts with reference to the property in such a way as to destroy the mortgagor's right of redemption, the mortgagor would have a cause of action for damages as for a conversion, or would have the right to claim a satisfaction of the debt, as in Fowler v. Goldsmith, 131 S.C. 119, 126 S.E., 431, and Yancey v. Southern Wholesale Lumber Co., 133 S.C. 369, 131 S.E., 32.

Is it not remarkable that the plaintiff is suing for a conversion of his property and at once has an attachment levied upon the truck as the property of the defendant?

The plaintiff is entitled to an accounting by the defendant of the value of the truck, as a credit upon the remainder due upon the eleven notes, and the defendant is entitled to a judgment against the plaintiff for the balance.

In my opinion the judgment of this Court should be that the judgment of the County Court be reversed; that the case be remanded to that Court with directions to order a nonsuit upon the plaintiff's alleged cause of action, with leave to the plaintiff to amend the complaint by demanding an accounting by the defendant of the value of the truck, to be credited upon the notes set up in the defendant's counterclaim; and that the defendant have judgment against the plaintiff for the balance, if any, ascertained to be due upon such accounting.