62

63

fusal "may be accompanied with such reasonable qualification as to furnish an excuse for retention, and then there is no conversion shown merely by proof of demand and refusal." For instance, if the holder have a lien upon the goods, his refusal to surrender until payment will not subject him to a recovery in trover,61 and so where he merely requests the party making the demand to point out and identify the property, or to submit evidence of his authority to act for the owner, or "when the refusal is only for a time, for the purpose of ascertaining ownership," as where demand has been made by one not known to be entitled to the goods, the party in possession declining compliance until he has had proper opportunity for investigation. The refusal must have been in good faith, the reply must not be evasive," the qualification must be reasonable, and, if investigation is desired, a decision must be reached within a reasonable time. Again, one

66

280, 59 Am. Dec. 345; Wood v. Fisk, 215 N. Y. 233, 109 N. E. 177; Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492, 8 Am. Rep. 564.

60 McCormick v. Pennsylvania Cent. R. Co., 49 N. Y. 303, 310. 61 Jeems v. Lewis, 13 Ga. App. 456, 79 S. E. 235. Cf. BOARDMAN v. SILL, 1 Campb. 410, Chapin Cas. Torts, 194.

62 Butler v. Jones, 80 Ala. 436, 2 South, 300.

63 Ingalls v. Bulkley, 15 Ill. 224; Blankenship v. Berry, 28 Tex. 449. Cf. Alexander v. Southey, 5 Barn. & Ald. 247; Solomons v. Dawes, 1 Esp. 83.

64 Buffington v. Clarke, 15 R. I. 437, 438, 8 Atl. 247.

65 Zachary v. Pace, 9 Ark. 212, 47 Am. Dec. 744; Whiting v. Whiting, 111 Me. 13, 87 Atl. 381; Carroll v. Mix, 51 Barb. (N. Y.) 212; Green v. Dunn, 2 Campb. 215. Cf. Bolling v. Kirby & Bro., 90 Ala. 215, 7 South. 914, 24 Am. St. Rep. 789; Singer Mfg. Co. v. King, 14 R. I. 511.

66 Flannery v. Brewer, 66 Mich. 509, 33 N. W. 522. Good faith usually a question for the jury. McEntee v. New Jersey Steamboat Co., 45 N. Y. 34, 6 Am. Rep. 28; Vaughan v. Watt, 6 M. & W. 492. 67 Ingersoll v. Barnes, 47 Mich. 104, 10 N. W. 127; Dowd v. Wadsworth, 13 N. C. 130, 18 Am. Dec. 567.

68 Reasonableness of qualification usually a question for the jury. Dent & Cade v. Chiles, 5 Stew. & P. (Ala.) 383, 26 Am. Dec. 360; Sutton v. Gt. Northern Ry. Co., 99 Minn. 376, 109 N. W. 815; McEntee v. New Jersey Steamboat Co., 45 N. Y. 34, 6 Am. Rep. 28; Alexander v. Southey, 5 Barn. & Ald. 247.

Go Felcher v. McMillan, 103 Mich. 494, 61 N. W. 791; Sargent v.

who is in a position to refuse qualifiedly must_assign the proper ground. He may not refuse to give a reason for declining to return the property, nor may he give other than the true reason. The question of conversion or no conversion will be determined by his conduct at the time when demand was made.70 If one is so embar-. rassed by conflicting claims that he feels unable safely to decide, he may relieve himself from responsibility by promptly commencing a suit in equity in the nature of a bill of interpleader," or by adopting whatever similar proceeding is recognized by the practice of his state.72

QUANTUM OF PLAINTIFF'S INTEREST

83. To maintain trover, plaintiff must establish that at the time of the conversion he had possession, or a right to immediate possession.73

Perhaps it would be more accurate to say the latter only, since to speak of possession itself as a requisite is to obscure the dividing line between trespass and trover; the former, as has been seen, being predicated on an injury to the thing, whereas the latter lies for an injury to the right. Hence trespass is brought by the possessor; trover by him who has the right to immediate possession. In cases where the plaintiff has possession in fact, he may, it is true, adopt

Gile, 8 N. H. 325; Ball v. Liney, 48 N. Y. 6, 8 Am. Rep. 511. Reasonableness of time is usually for the jury. Vaughan v. Watt, 6 M. & W. 492.

70 Spence v. Mitchell, 9 Ala. 744; Ingalls v. Bulkley, 15 Ill. 224; Rogers v. Weir, 34 N. Y. 463; BOARDMAN v. SILL, 1 Campb. 410, Chapin Cas. Torts, 194.

71 Byers v. Sansom-Thayer Commission Co., 111 Ill. App. 575; Beebe v. Mead, 101 App. Div. 500, 92 N. Y. Supp. 51; Ball v. Liney, 48 N. Y. 6, 8 Am. Rep. 511.

72 Cf. Code Civ. Proc. N. Y. § 820. As to interpleader by bailee, see note, 33 L. R. A. (N. S.) 696.

73 Burton v. Tannehill, 6 Blackf. (Ind.) 470; Raymond Syndicate v. Guttentag, 177 Mass. 562, 59 N. E. 446; Stevenson v. Fitzgerald, 47 Mich. 166, 10 N. W. 185; Clements v. Yturria, 81 N. Y. 285.

either form, since his presumptive right to possession cannot be destroyed, except by one who has a paramount right. This is shown in the celebrated case of the chimney sweep, who, having found a jewel, was permitted to recover in trover against one who had taken it for examination and refused to return it, and by a long line of authorities 75 it is established that it is the right to immediate possession, and not the right of ownership, which is involved. For example, the bailee may sue, having at the time of the conversion the right to the custody of the chattel as against the converter, though but a special property therein.

A constructive possession based upon a legal title 78 will be sufficient. "When another person may happen to be actually possessed of such property without holding it adversely to the owner, or without being entitled to hold it against his consent,80 the general property draws to the

79

74 Armory v. Delamirie, Str. 505.

75 Carpenter v. Lewis, 6 Ala. 682; Anderson v. Gouldberg, 51 Minn. 294, 53 N. W. 636; Duncan v. Spear, 11 Wend. (N. Y.) 54; Danielson v. Roberts, 44 Or. 108, 74 Pac. 913, 65 L. R. A. 526, 102 Am. St. Rep. 627.

76 Thus it is not enough merely to allege that plaintiff was and is the owner, since it is not equivalent to an averment of possession or the right to possession. Citizens' Bank of St. Louis v. Tiger Tail Mill & Land Co., 152 Mo. 145, 53 S. W. 902.

77 Baker v. Troy Compress Co., 114 Ala. 415, 21 South. 496; Bode v. Lee, 102 Cal. 583, 36 Pac. 936; Vining v. Baker, 53 Me. 544; Shaw v. Kaler, 106 Mass. 448; Bowen v. Fenner, 40 Barb. (N. Y.) 383. The pledgee may maintain trover. Way v. Davidson, 12 Gray (Mass.) 465, 74 Am. Dec. 604; Walcott v. Keith, 22 N. H. 196. Likewise the mortgagee. Canfield v. W. J. Gould & Co., 115 Mich. 461, 73 N. W. 550; White v. Phelps, 12 N. H. 382; Smith v. Smalley, 19 App. Div. 519, 46 N. Y. Supp. 277.

78 Clements v. Yturria, 81 N. Y. 285.

79 Thus the owner and constructive possessor of the land may maintain trover for things which in their natural state form part of the freehold, but which have been severed therefrom and converted into chattels. There can be no constructive possession, however, where another is in actual possession holding adversely. Pearce v. Aldrich Mining Co. (1913) 184 Ala. 610, 64 South. 321.

80 Plaintiff must be in a position to take possession immediately, and not merely at some future time. Clark v. Draper, 19 N. H. 419. Cf. Knight v. Sackett & Wilhelms Litho. Co., 141 N. Y. 404, 36 N. E.

owner the constructive possession." 81 Thus, where the chattel has been bailed for a definite time, which has not expired, the bailor cannot sue in trover,82 but can "sustain only a special action on the case for consequential damage to his reversionary right," 83 though it is otherwise where. the bailment has ended, as where it was at the will of the bailor, or where the conduct of the bailee gave to the bailor the right to terminate the bailment, as where he has done an act amounting to a conversion.87

85

84

86

392. A statutory lien on crops in favor of the landlord, since it gives him no right to possession, is not sufficient. Folmar & Sons v. Copeland & Brantley, 57 Ala. 588; Dekle v. Calhoun (1910) 60 Fla. 53, 53 South. 14.

81 Lexington & Ohio R. Co. v. Kidd, 7 Dana (Ky.) 245, 247. In accord, Thorp v. Burling, 11 Johns. (N. Y.) 285; Williams v. Belthany, 2 Mill, Const. (S. C.) 415; Seward v. Heflin, 20 Vt. 144.

82 Triscony v. Orr, 49 Cal. 612; Lexington & Ohio R. Co. v. Kidd, 7 Dana (Ky.) 245; Raymond Syndicate v. Guttentag, 177 Mass. 562, 59 N. E. 446; Andrews v. Shaw, 15 N. C. 70; Gordon v. Harper, 7 T. R. 9.

83 Lexington & Ohio R. Co. v. Kidd, 7 Dana (Ky.) 245, 248. In accord, Williams v. Brassell, 51 Ala. 397; Forbes v. Parker, 16 Pick. (Mass.) 462. See New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828.

84 "A bailment may be determined by the mere efflux of time, as where the chattel is bailed for a stated period. It may be determined by the accomplishment of the object for which the thing was bailed, as where the chattel is hired for a particular purpose, or is pledged until the loan is repaid. It may be dissolved by mutual agreement at any time. And either party, as has been said, where the bailment is not for any particular time, may terminate it at will. It may be terminated by the total or partial destruction of the subject-matter of the bailment, as where a chattel is lost or is destroyed. It may be also terminated where the bailee disposes of it contrary to the terms of the bailment. In his case the bailment was terminated at the time of the injury, for then it was no longer, under the evidence, fit and suitable for the use which the contract of bailment contemplated." New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 342, 38 Atl. 828, per Lippincott, J.

85 Morgan v. Ide, 8 Cush. (Mass.) 420; Drake v. Redington, 9 N. H. 243. But see Forbes v. Marsh, 15 Conn. 384.

86. Hardy v. Reed, 6 Cush. (Mass.) 252.

87 United Shoe Machinery Co. v. Holt, 185 Mass. 97, 69 N. E. 1056; Sanborn v. Colman, 6 N. H. 14, 23 Am. Dec. 703; Swift v. Moseley, 10 Vt. 208, 33 Am. Dec. 197; Farrant v. Thompson, 5 Barn. & Ald.

DEFENSES

84. A return in good faith by a custodian to the bailor, or to one who is in fact entitled to the possession, is a sufficient defense. But the defendant may not plead jus tertii unless he connect himself therewith. By the American doctrine, an offer to return, if not accepted, cannot be pleaded in defense.

It has been said that if one who, having been intrusted with the custody of goods by a person having no property therein, return them to the latter, in good faith and without notice of the rights of the true owner, he does not thereby subject himself to an action of trover.88 Necessarily the defendant, in an action based upon an alleged unlawful detainer or a delivery to a third party, establishes a sufficient excuse where he proves that he delivered the chattel to, or dealt with it pursuant to the directions of, one who was in fact the true owner, or, more properly, the person having the then right to possession.89 If, under such circumstances, he sets up the title of another, he does so at his peril, for he then makes himself a party to the controversy.00

Though the defendant may plead jus tertii as against one in possession, this is subject to the qualification that he must connect himself therewith, for otherwise it will constitute no defense to an action of trover. But one not in actual possession, i. e., having only an alleged right to immediate possession, may not recover, where a right to possession is shown to be in

826. Cf. Moseley v. Wilkinson, 24 Ala. 411. But see Andrews v. Shaw, 15 N. C. 70.

88 See supra, p. 377.

89 Thompson v. Andrews, 53 N. C. 125; The Idaho, 93 U. S. 575, 23 L. Ed. 978.

90 See Rogers v. Weir, 34 N. Y. 463, 471.

91 Mitchell v. Thomas, 114 Ala. 459, 21 South. 991; Stevens v. Gordon, 87 Me. 564, 33 Atl. 27; Brown v. Shaw, 51 Minn. 266, 53 N. W. 633; Wheeler v. Lawson, 103 N. Y. 40, 8 N. E. 360; Marcy v. Parker, 78 Vt. 73, 62 Atl. 19.