an execution, seizes the property of a person, other than the judgment debtor, whether by mistake or design, it is not necessary for the owner of the property thus seized to make a demand on the sheriff before commencing suit.39 Where goods were wrongfully taken by one person, and came rightfully into the possession of another, a demand upon the latter should be averred.40 So in a case of a bailee in good faith, and where the goods are subsequently wrongfully detained. When a demand is necessary, it is sufficient to make it upon the one who is in the actual possession, and able to comply with it.42

§ 2104. Demand and refusal. A demand and refusal are never necessary as evidence of conversion, unless the other acts of the defendant are not sufficient to prove it. Nor are they evidence when it was not in the defendant's power to deliver the property when demanded.43 The demand and refusal are only evidence of the conversion. To constitute a demand 39 Boulware v. Craddock, 30 Cal. 190; Moore v. Murdock, 26 id. 524; see, also, Woodworth v. Knowlton, 22 id. 164.

40 Pierce v. Van Dyke, 6 Hill, 613; Ely v. Ehle, 3 N. Y. 506; Tallman v. Turch, 26 Barb. 167.

41 Purves v. Moltz, 5 Rob. 653. As to cases in which previous demand of goods from holder will be essential to render him liable for the conversion, see Chambers v. Lewis, 16 Abb. Pr. 433; S. C., 28 N. Y. 454; Hicks v. Cleveland, 39 Barb. 573.

42 Woodworth v. Knowlton, 22 Cal. 164.

43 Gilmore v. Newton, 9 Allen, 171; 85 Am. Dec. 749.

44 State v. Patten, 49 Me. 383; Hunt v. Holton, 13 Pick. 216; Pierce v. Benjamin, 14 id. 356; 25 Am. Dec. 396; Thurston v. Blanchard, 22 Pick. 18; 33 Am. Dec. 700; see Badlam v. Tucker, 1 Pick. 397; 11 Am. Dec. 202. If the defendant took the plaintiff's property, and refused to return it on demand, there is a conversion, and an allegation of these facts sufficiently shows a conversion. Arzaga v. Villalba, 85 Cal. 191; and see Bigelow Co. v. Heintze, 53 N. J. L. 69; Railroad Co. v. O'Donnell, 49 Ohio St. 489; 34 Am. St. Rep. 579; Saratoga, etc., Light Co. v. Hazard, 55 Hun, 251; Schmidt v. Garfield Nat. Bank, 64 Hun, 298. Sufficient allegation of demand in action against sheriff for conversion. See Holdridge v. Lee, 3 S. Dak. 134. Under an allegation that the defendants have converted the property to their own use, the plaintiff has a right to prove a demand and refusal, or other facts to show an actual conversion. Berney v. Drexel, 33 Hun, 34; affirmed, id. 419. Demand and refusal are only evidence of a conversion. Felcher v. McMillan, 103 Mich. 494.

Deposit of money - Nonpayment. In an action to recover money deposited with the defendant, an averment that the defendant has neglected and refused to pay the money, though requested to do so

and refusal an evidence of a conversion, it is sufficient that the goods are in the possession of the agent of the defendant, and the latter on demand refuses to permit his agent to deliver them.45 A refusal to deliver, retracted before suit brought, ceases to be a conversion.48

47

§ 2105. Election of remedy. Where personal property is tortiously taken, the party aggrieved may waive the tort and sue in assumpsit for the value of the property. The election between the right to sue in tort or in contract in respect to the same transaction, is conclusive, and when made must be abided by on trial, and in its after consequences.48 And the complaint must be framed with precise reference to the specific remedy invoked.49 An allegation of contract by way of inducement will not vary the nature of an action sounding in tort.50 And if no demand is necessary in an action to recover certain specific personal property, no demand is necessary in an action brought to recover its value only.51

by the plaintiff, is a sufficient averment of nonpayment, and is equivalent to a statement that the defendant had failed and refused to pay. Rankin v. Sisters of Mercy, 82 N. Y. 88.

45 Chambers v. Lewis, 28 N. Y. 454; S. C., 16 Abb. Pr. 433.

46 Wells v. Kelsey, 15 Abb. Pr. 53.

47 Fratt v. Clark, 12 Cal. 89; see § 315, ante.

48 Bank of Beloit v. Beale, 34 N. Y. 473; Ranson v. Wetmore, 39 Barb. 104; Wright v. Ritterman, 1 Abb. Pr. (N. S.) 428; People v. Kelly, id. 432; Grocers' Nat. Bank v. Clark, 31 How. Pr. 115; Finlay v. Bryson, 84 Mo. 664.

49 Smith v. Knapp, 30 N. Y. 581. An allegation in a complaint that the plaintiff deposited with the defendants, who were bankers, a sum of money to be sent to a certain other bank, and that the defendants failed to send said sum, but converted it to their own use, does not necessarily imply an intent to claim for a tortious conversion of the money so deposited. Such an allegation, though vaguely worded, imports a contract to pay a sum of money in consideration of a deposit of the amount. Suksdorf v. Bigham, 13 Oreg. 369. Waiver of tort by not objecting to counterclaim. See Wimmer v. Simon, 9 Utah, 378.

As to the effect of an

50 Person v. Civer, 28 How. Pr. 139. election to waive tort and sue in assumpsit, see Mayor of New York v. Parker Vein S. S. Co., 8 Bosw. 300; Terry v. Munger, 121 N. Y. 161; 18 Am. St. Rep. 803.

51 Whitman G. & S. M. Co. v. Tritle, 4 Nev. 494. Where the plaintiff waives the tort and sues in assumpsit, the institution of the suit is a sufficient demand. Dougherty v. Chapman, 29 Mo. App. 233.

§ 2106. Gist of the action. The conversion is the gist of the action, and without conversion neither possession of property, negligence, nor misfortune will enable the action to be maintained.52 Defendant must have converted the property to his own use, and if not, then any other act to amount to a conversion must be done with a wrongful intent, either expressed or implied.53

§ 2107. Intent. A wrongful intent is not an essential element of the conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it.54

§ 2108. Joinder of parties. All the parties in interest should join in action of trover, and a failure to join may be pleaded in abatement.55 In an action by the parties whose property has been wrongfully taken under legal process, all who join or participate in the trespass are joint trespassers.56 In case of joint bailees, demand and refusal by one is not of itself, as in case of partners, a conversion.5 But the refusal by a partner is a conversion.58

57

§ 2109. Joint ownership. A complaint which avers that the defendant took and carried away "certain goods, chattels, and effects, of and belonging to the said plaintiffs," does not necessarily aver a joint ownership of the goods in the plaintiff.59

§ 2110. Jurisdiction. Actions to recover compensation for injuries done to personal property may be maintained wherever jurisdiction of the parties can be obtained.60

62 Rogers v. Huie, 2 Cal. 571; 56 Am. Dec. 363.

53 Id.; and see Bigelow v. Heintze, 53 N. J. L. 69.

54 Perkins v. Smith, 1 Wils. 328; Connah v. Hale, 23 Wend. 462; Beck v. McGillis, 9 Barb. 242; Boyce v. Brockway, 31 N. Y. 490; Velsian v. Lewis, 15 Oreg. 539; 3 Am. St. Rep. 184.

55 Whitney v. Stark, 8 Cal. 514; 68 Am. Dec. 360.

56 Lewis v. Johns, 34 Cal. 629; see § 2056, ante.

57 Mitchell v. Williams, 4 Hill, 13.

58 Holbrook v. Wright, 24 Wend. 169; 35 Am. Dec. 607.

69 Pelberg v. Gorham, 23 Cal. 349.

60 McIvor v. McCabe, 26 How. Pr. 257; 1 Chit. Pl. 243; Com. Dig., Trover, 7; Denton v. Livingstone, 9 Johns. 67, 69; Beach v. Beach, 2 Hill, 262; 38 Am. Dec. 584; Smith v. Butler, 1 Daly, 508.

§ 2111. Measure of recovery. In an action by the pledgee of goods against a stranger for the conversion of pledged property, the rule is that plaintiff is entitled to recover its full value; but if against the owner, or one acting in privity. with him, then only for plaintiff's special interest therein as pledgee.61 So, also, as against sheriff for conversion of goods pledged, he will be held liable only for plaintiff's special interest in the goods.62 In Nevada, if personal property is unlawfully seized and converted, the measure of damages is the value of the property at the time of the conversion, and interest from that time to judgment.63 In California, the damage caused by the wrongful conversion of personal property is presumed to be: 1. The value of the property at the time of the conversion, with interest from that time; or, where the action. has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party; 2. A fair compensation for the time and money properly expended in pursuit of the property. One having a mere lien on personal property can not recover greater damages for its conversion, from one having a right thereto superior to his after his lien is discharged. than the amount secured by the

64

61 Treadwell v. Davis, 34 Cal. 601; 94 Am. Dec. 770. 62 Id.

63 Carlyon v. Lannan, 4 Nev. 156.

64 Civil Code, § 3336, as amended January 22, 1878. Where the whole amount of unliquidated damages, exclusive of interest, claimed in a complaint for the wrongful conversion of wheat, equals or exceeds $300, the Superior Court has jurisdiction of the action, although the value of the wheat converted, and the money expended in pursuit of it, separately considered, do not either of them equal the jurisdictional sum. Greenbaum V. Martinez, 86 Cal. 459. See, generally, as to the measure of damages in trover, Russell v. Huiskamp, 77 Iowa, 727; Railroad Co. v. O'Donnell, 49 Ohio St. 489; 34 Am. St. Rep. 579; for conversion of stocks and bonds, Wright v. Bank, 110 N. Y. 237; 6 Am. St. Rep. 356; Dimock v. United States Nat. Bank, 55 N. J. L. 296; Budd v. Railway Co., 15 Oreg. 413; 3 Am. St. Rep. 169; for conversion of promissory note, Hersey v. Walsh, 38 Minn, 521; 8 Am. St. Rep. 689; for conversion of ore, Refining Co. v. Tabor 13 Col. 41; 16 Am. St. Rep. 185; for conversion of trees carelessly cut on plaintiff's land, Beede v. Lamfrey, 64 N. H. 510; 10 Am. St. Rep. 426; exemplary damages, San Antonio, etc., R. R. Co. v. Kniffen, 4 Tex. Civ. App. 484.

lien, and the compensation allowed by section 3336 for loss of time and expenses.

65

§ 2112. Offer to restore. And if, before suit is brought, the defendant unconditionally offers to restore the property, the object is attained, and the suit is wholly unnecessary.

66

§ 2113. Ownership. Ownership by the plaintiff must be shown, or a special property with the immediate right of possession.67 If the plaintiff claims as owner, an allegation that he is owner is sufficient, without stating other facts to show his title.68 But an equitable title without an immediate right to possession is not sufficient to form ground for this action.69 It is unnecessary to allege ownership of the goods when the complaint alleges a forcible and wrongful taking,70 or a vested legal interest, though either allegation of ownership or pos

71

65 Civil Code, § 3338.

66 Savage v. Perkins, 11 How. Pr. 17. The return of the property after conversion is no bar to the action, but is admissible in mitigation of damages. Murphy v. Hobbs, 8 Col. 17; People v. Bank of North America, 75 N. Y. 547. In such a case the plaintiff will not recover the value of the goods, but the damages he has sustained by the wrongful act, which was the conversion. Bigelow Co. v. Heintze, 53 N. J. L. 69.

67 Clark v. Skinner, 20 Johns. 465; 11 Am. Dec. 302; McCurdy v. Brown, 1 Duer, 101; Dodworth v. Jones, 4 id. 201; Hayes v. Life Ins. Co., 125 Ill. 626.

68 Depew v. Leal, 2 Abb. Pr. 131; Burns v. Robbins, 1 Code R. 92; Roberts v. Willard, id. 100; Heine v. Anderson, 2 Duer, 318; Warren v. Dwyer, 91 Mich. 414; Reid v. McRill, 41 Neb. 206; see § 2116, post.

69 Whitcomb v. Hungerford, 42 Barb. 177.

70 Kissam v. Roberts, 6 Bosw. 154, and cases there cited; Bliss v. Cottle, 32 Barb. 322; Heine v. Anderson, 2 Duer, 318. One having possession merely is the owner as against a wrongdoer, and a complaint averring possession and a right of possession in the plaintiff, without a direct averment of ownership or title, is sufficient to support a judgment in favor of the possessor against a trespasser. Rosenthal v. McMann, 93 Cal. 505. Nor is it necessary to allege in express terms in the complaint that the plaintiff is the owner of the property, provided that fact appears from the complaint conclusively, when the objection is not taken until after the verdict. McKay v. Musgrove, 15 Oreg. 162. Sufficient allegation of ownership of the property by the plaintiff. See Berney v. Drexel, 33 Hun, 34; id. 419.

71 Pope v. Tucker, 23 Ga. 484; see Hunt v. Pratt, 7 R. I. 286.