Boobier v. Boobier , 39 Me. 406 ( 1855 )

TeNNEY, J.

-f-k. minor under the age of twenty-one years, may acquire and hold property in his own name, distinct from that of his father, at the time he may be legally subject to the control of the latter. This may be done when tlie property is tlie fruit of tlie minor’s earnings, if it be obtained by tlie consent of the father, that it shall be his. Complaint is made, that the instructions upon the right of the son, to hold property so acquired, were erroneous. 7

Instructions to the jury, when matter of exception in law, may properly be considered in connection with the evidence reported, bearing upon the point on which the instructions were given. In this case, under the instructions and the evidence, the jury must have found, that the father had suffered the plaintiff, his son, “ to go from him, and work for his own support, and make contracts for himself without interference,” and that the plaintiff was interested as the owner, in part at least, of the goods alleged to have been converted by the defendant. This was sufficient to enable the plaintiff to recover, other necessary facts existing, notwithstanding emancipation, as the term is generally understood, may not have been properly inferable, from the facts supposed in the instructions.

The requested instructions to the jury, which were not given, wore properly withheld. If two persons are the owners of chattels as tenants in common, the entire appropriation of the whole by any one to the absolute exclusion of the other, is a conversion, and will entitle the party so deprived of possession in common, to maintain an action for the value of his property in damages. Bryant v. Clifford, 13 Met. 129.

The jury were instructed, “ that to recover, the plaintiff must show, that he owned the goods, and there was a conversion by the defendant; that to make a conversion, there must be a demand, and a refusal to deliver, by one having the goods in possession, unless the defendant had by force prevented the plaintiff from getting possession, or in some way withstood his efforts to got them, and in that case, it would be a conversion, whether the defendant had possession or not.” The proposition, that the use of force by one not having possession of goods, to prevent the true owner from obtaining them, amounts to a conversion of those goods, is not sustained as sound in principle. The authorities cited by the defendant’s counsel are decisive against its correctness.

In an action of trover, the plaintiff waives all claim to damages on account of a violation of his possession, and claims indemnity for the loss of the property itself and nothing further. And the property having become, by the conversion, that of the person who converted it, it follows, from the waiver, that the worth of the goods at the time of the tortious taking is prima facie the measure of damages. Chamberlin v. Shaw, 18 Pick. 278. If a defendant in an action of trover, has no possession actual or constructive, at the time, of a demand by the owner, and a refusal by him to deliver the property, and there has been no tortious taking or withholding of the same previously, he cannot restore the chattel, and he is absolved from liability, notwithstanding he may forcibly interpose obstacles, in order to prevent the owner from obtaining the possession sought. And it has been held, that when the plaintiff relies only upon a demand and a refusal, as evidence of conversion by the defendant, he must also show that the latter had the power to give up the goods. 2 Greenl. Ev. § 644; 3 Stark. Ev. 1497.

Exceptions sustained. — New trial granted.