SUBDIVISION SIXTH.

FOR THE CONVERSION AND FOR THE POSSESSION OF SPECIFIC PROPERTY.

plaintiff was lawfully possessed of [briefly describe the goods],

his property, of the value of

II. That on said day, at ...

...

.. dollars.

fully took and carried away said goods and converted and disposed of the same to his own use, to the damage of the plaintiff dollars.

was the owner of [describe the property], of the value of dollars, and was then entitled to the immediate

the defendant then being in possession of said goods, unlawfully converted and disposed of the same to his own use, to the damage of the plaintiff

[DEMAND OF JUDGMENT.] 2

dollars.

1 Approved in Sawyer v. Robertson, 11 Mont. 422; Kennett v. Peters, 54 Kan. 119; 45 Am. St. Rep. 274.

2 If the plaintiff desires to recover for the time spent and money expended in endeavoring to find and obtain possession of the

Vol. II-1

2100. Conversion defined. The rule is that any unlawful interference with the property of another, or exercise of dominion over it by which the owner is damnified, is sufficient to maintain the action. Every unauthorized assumption of dominion over property in hostility to the right of the true owners is a conversion. The principle is applied to the case of an infant obtaining goods by fraudulent representations as to his age; or to a case of vendor retaking goods after delivery; or of a factor disobeying instructions of his principal; or of a pledgee of a stock of goods selling without due notice to pledgor; or of subsequent sale of shares purchased under suspicious circumstances; or of note deposited by one bank in another for collection, and diverted to payment of antecedent debt;10 or of money intended for payment of notes, and seized by the holder without giving them up;11 or of property wrongfully intermixed;13 or of property seized under void process;1 or of property to be returned if not paid for by a certain time;14 or of property obtained by fraudulent representations;15 or of property obtained in exchange for a void note.16 A sale of property, under section 3336 of the California Civil Code, he should specially allege the facts. In such case, add to the preceding forms the following: III. That the plaintiff properly spent days' time, and expended

........

.11

.13

dollars in pursuit of said prop

erty, and that the time so spent was reasonably worth dollars.

3 Latimer v. Wheeler, 1 Keyes, 468.

4 Bovce v. Brockway, 31 N. Y. 490; also, Dodge v. Meyer, 61 Cal. 405; Velsian v. Lewis, 15 Oreg. 539; 3 Am. St. Rep. 184; Ramsley v. Beezley, 11 Oreg. 51; Union Stock-yard, etc., Co. v. Mallory, 157 Ill. 554; 48 Am. St. Rep. 341.

5 Eckstein v. Frank, 1 Daly, 334.

6 Huelet v. Reyns, 1 Abb. Pr. (N. S.) 27.

7 Scott v. Rogers, 31 N. Y. 679.

8 Joroslauski v. Saunderson, 1 Daly, 232; Brass v. Worth, 40 Barb. 648; Campbell v. Parker, 9 Bosw. 322; Genet v. Howland, 45 Barb. 560; 30 How. Pr. 360; Clarke v. Meigs, 10 Bosw. 337.

9 Anderson v. Nicholas, 28 N. Y. 600.

10 Potter v. Merchants' Bank, 28 N. Y. 641; 86 Am. Dec. 273. 11 McNaughton v. Cameron, 44 Barb. 406.

12 Morgan v. Gregg, 46 Barb. 183.

13 Kerr v. Mount, 28 N. Y. 659; Hicks v. Cleveland, 39 Barb. 573. 14 Person v. Civer, 29 How. Pr. 432.

15 Cary v. Hotailing, 1 Hill, 311; 37 Am. Dec. 323; Olmsted v. Hotailing, 1 Hill, 317; questioned in Roberts v. Randel, 3 Sandf.

18 Loeschigh v. Blum, 1 Daly, 49.

property by insured after an abandonment is conversion.17 So a sale of property by a manufacturer after delivery to the plaintiff is a conversion.18 The same is true of a sale by one tenant in common of the entire chattel, followed by exclusive claim and dominion in the purchaser.19 Where a commission merchant places goods consigned to him for sale in the hands of another for sale, it is a conversion.20 Or if a factor pledge the goods of his principal for his own debt. A wrongful taker of goods is liable for their whole value, although the owner had insured them and has been paid in full.22

§ 2101. Conversion by agent. The omission or refusal to pay over moneys received by a factor, agent, or trustee in the course of his agency or trust will lay the foundation of an action of trover.23 So a misuse of the property pledged by attempting to sell it before time of forfeiture is a conversion.24 An auctioneer, who in the regular course of his business receives

17 Robertson v. United Ins. Co., 1 Johns. 592. 18 Babcock v. Gill, 10 Johns. 287.

192 Kent's Com. 350; Barton v. Williams, 5 Barn. & Ald. 395; Wilson v. Reed, 3 Johns. 175; Hyde v. Stone, 8 Cow. 230; Mumford v. McKay, 8 Wend. 442; 24 Am. Dec. 34.

20 Moffat v. Wood, Seld. notes Nos. 5, 14; commented on in Roth v. Palmer, 27 Barb. 652.

21 Kennedy v. Strong, 14 Johns. 128; see Henry v. Marvin, 3 E. D. Smith, 71; Nichols v. Gaze, 10 Oreg. 82.

22 Perrott v. Scherer, 17 Mich. 48. For further illustrations as to what constitutes conversion, see Hynes v. Patterson, 95 N. Y. 1; Railroad Co. v. O'Donnell, 49 Ohio St. 489; 34 Am. St. Rep. 579; Rushin v. Thorpe, 88 Ga. 779; Freeman v. Boland, 14 R. I. 39; 51 Am. Rep. 340; Refining Co. v. Tabor, 13 Col. 41; 16 Am. St. Rep. 185. Any intermeddling with the property of another, or exercise of dominion over it, whether by the defendant alone, or in connection with others, in denial of the owner's rights, or subversive of his dominion, is a conversion, though the defendant had not the complete manucaption of the property. Bolling v. Kirby, 90 Ala. 215; 24 Am. St. Rep. 789.

23 Paley on Agency, 79; Weymouth v. Boyer, 1 Ves. Jr. 424; Walter v. Bennett, 16 N. Y. 250; Harris v. Schultz, 40 Barb. 315. If an agent, intrusted with the property of his principal, parts with it in a way or for a purpose not authorized, he is liable for a conversion, although there was no wrongful intent on his part. Laverty v. Sneitren, 68 N. Y. 522; 23 Am. Rep. 184; and see Coleman v. Pearce, 26 Minn. 123; Anderson v. First Nat. Bank, 5 N. Dak. 80.

24 Vincent v. Conklin, 1 E. D. Smith, 203.

and sells stolen goods, and pays over the proceeds of the sale to the felon, without notice that the goods were stolen, is not liable to the true owner for a conversion.2 25 A mere agreement between two or more persons to convert the property of another without an actual intermeddling with it does not give the owner a cause of action against the parties to the agreement.20

An allegation in

§ 2102. Conversion, allegation sufficient. the complaint that defendant converted the property to his own use, is sufficient. It is not necessary to state the mode in which the defendant appropriated the property.27 A declaration in trover for a "tool chest containing divers tools and working utensils," and "trunk containing clothes," held sufficiently certain.28 A narration reciting all the circumstances attending the seizure and conversion of a bag of gold is immaterial and redundant.29 It is not necessary to set out the manner in which the defendant converted the property.30 An allegation in the complaint of the place where the property was taken, in an action to recover possession of personal property, is surplusage.31 That the defendant took and carried away the goods is equivalent to an averment that he converted the property to his own use. A general allegation that the defendant has wrongfully converted the property is sufficient, and the specific acts constituting the alleged conversion need not be pleaded.33 An allegation that the defendants, "without leave, forcibly and wrongfully drove away" certain cattle belonging to the plaintiff and have not returned the same, is sufficient.3 It is held that a complaint or petition in trover states a cause

32

25 Rogers v. Huie, 2 Cal. 571; 56 Am. Dec. 363; and see, to same effect, Lewis v. Mason, 94 Mo. 551; Frizzell v. Rundle, 88 Tenn. 396; 17 Am. St. Rep. 908; Higgins v. Lodge, 68 Md. 229; 6 Am. St. Rep. 437.

20 Herron v. Hughes, 25 Cal. 555.

27 Decker v. Mathews, 12 N. Y. 321, 324.

28 Ball v. Patterson, 1 Cranch C. Ct. 607.

20 Green v. Palmer, 15 Cal. 411; 76 Am. Dec. 492.

30 Otero v. Bullard, 3 Cal. 189; Decker v. Mathews, 12 N. Y. 321, 324.

31 Lay v. Neville, 25 Cal. 545.

32 Hutchings v. Castle, 48 Cal. 152.

83 First Nat. Bank v. Boom Corp., 41 Minn. 141; Smith v. Thompson, 94 Mich. 381; Norman v. Horn, 36 Mo. App. 419; San Antonio,

etc., R. R. Co. v. Kniffen, 4 Tex. Civ. App. 484.

84 Warwick v. Baker, 42 Mo. App. 439.

of action when it alleges that the plaintiff was the owner of the property in question, describing it, and alleging its value, and that the defendants wrongfully took and converted it to their own use.35

§ 2103. Demand. It is a general rule that when the possession of property is originally acquired by a tort, no demand previous to the institution of the suit is necessary.38 In an action against a sheriff for property tortiously taken by him under an attachment or execution against some other person, it is not necessary to allege and prove a demand for its delivery prior to the commencement of the action;37 as the only purpose of proving a demand in trover and replevin is to show defendant's possession wrongful.38 Thus, if a sheriff, by virtue of

35 Robinson v. Peru Plow & Wheel Co., 1 Okl. 140; and see Gregory v. Fichtner, 14 N. Y. Supp. 891; 27 Abb. N. C. 86; Humpfner v. Osborne, 2 S. Dak. 310; Crews v. Baird, 2 Idaho, 94; Cortelyou v. Hiatt, 36 Neb. 584; Brunswick, etc., Co. v Brackett, 37 Minn. 58; Duggan v. Wright, 157 Mass. 228; Nance v. Railway Co., 35 S. C. 307. Section 1721 of the New York Code of Civil Procedure, providing that if the action is founded upon the wrongful detention of a chattel, the complaint must state the facts showing such detention, does not apply to actions of trover. Barry v. Calder, 48 Hun, 449. Complaint stating a cause of action for conversion, and not for the enforcement of a trust. See Hoowe v. Kreling, 93 Cal. 136.

36 Ledley v. Hays, 1 Cal. 160; Paige v. O'Neil, 12 id. 483; Sargent v. Sturm, 23 id. 359; 83 Am. Dec. 118; Ham v. Henderson, 50 Cal. 367; Pierce v. Van Dyke, 6 Hill, 613; Pringle v. Phillips, 5 Sandf. 157; Rhoades v. Drummond, 3 Col. 374; Stock-yard Co. v. Mallory, 157 Ill. 554; 48 Am. St. Rep. 341; Tuttle v. Campbell, 74 Mich. 652; 16 Am. St. Rep. 652; Kenrick v. Rogers, 26 Minn. 344; Croft v. Jennings, 173 Penn. St. 216. Nor is a demand before suit necessary where the conduct of the party is such as to show that demand would be unavailing. Gottlieb v. Hartman, 3 Col. 53; Manufacturing Co. v. Elevator Co., 51 Minn. 167. And where the defendant denies the plaintiff's title, and pleads ownership and right to the possession in himself or another, he can not defeat recovery on the ground that the plaintiff did not allege and prove demand before suit. Rosenau v. Syring, 25 Oreg. 386; Raper v. Harrison, 37 Kan. 243. But a demand is necessary where the goods are rightfully in the defendant's possession. Cohnfeld v. Walsh, 37 N. Y. 833; and see Hoff v. Coumeight, 35 id. 1052.

37 Ledley v. Hays, 1 Cal. 160. And all cases since then to the contrary have been overruled in Boulware v. Craddock, 30 Cal. 190; see, also, Sargent v. Sturm, 23 id. 359; 83 Am. Dec. 118.

38 Whitman G. & S. M. Co. v. Tritle, 4 Nev. 494.