Stewart v. Bright ( 1881 )

The Court, Comegys, C. J.,

charged the jury that to entitle the plaintiff to recover a verdict in the action for the alleged conversion by the defendant of the certificate of stock mentioned, stated to be a certificate of two hundred shares of stock in the Delaware State Fire and Marine Insurance Company, a corporation of this State, and claimed by him, the plaintiff, to have then been worth twenty-live dollars per share, but for which he paid, according to the undisputed testimony on both sides, two hundred and fifty dollars in the aggregate, it was incumbent upon him to prove to the satisfaction of the jury that the property or ownership of it was in him, and that h$ had a right to the possession of it at the time of the alleged conversion of it by the defendant, and also that the defendant wrongfully converted it to his own use. In such an action as this the ownership of the goods or property alleged in the plaintiff may be general or special, but the distinction between the two it is not necessary to explain, as the claim hereon the part of the plaintiff is the general ownership and of an unqualified right to the possession of it.

The gist of the action of trover is the conversion of the property by the defendant to his use, and conversion may be shown by any competent proof of the actual fact of its appropriation by the defendant to his use. And it may he prima facie proved by demand made upon the defendant for the property and his refusal to deliver it; but this evidence may be rebutted. And if the jury find in this case, from the evidence before them, that the certificate of stock in question was, by the agreement between the plaintiff and defendant and the others, by which the stock was bought up at five per cent, of its par value, was not to be delivered to the plaintiff until he had paid, or secured to be paid by a mortgage to the company on his farm in Virginia, a further or additional sum equal to fifty per cent, of its par value, which was twenty-five dollars per share, then the plaintiff could have had no right to the possession of the certificate until he had complied with that agreement, and therefore, unless the jury were satisfied that he had complied with it, he could not recover against the defendant.

Gh'ay, for the plaintiff. Lore, for the defendant.

But, on the contrary, if the jury find, from the evidence, that the absolute right and title to the certificate of two hundred shares of stock in the said company was in the plaintiff, and that the defendant had no right to withhold the possession of it from him, then his refusal to deliver it to him upon his demand was evidence from which they might find a wrongful conversion of the property by the defendant to his own use, and the plaintiff is entitled to recover such an amount of damages as he has sustained by the defendant’s act. The measure of such damages will be the value of the two hundred shares of stock in the said company represented in the certificate at the time of its conversion, and that was when the possession of it was demanded by the plaintiff and was refused by the defendant.

The defendant had a verdict.