Finch v. . Clarke , 61 N.C. 335 ( 1867 )

The description and the circumstances attending the mule were such that each party had reasonable cause to believe it to be his. Upon an interview between them a short time before this suit was brought, the plaintiff, who had possession of the mule, was induced by an affidavit made by one Edwards and the defendant, to deliver it up to the latter as his own, and he thereupon put it to work. Some ten days thereafter, having in the interval discovered strong reasons for believing it to be his, the plaintiff went to the defendant and demanded it, and then proposed that he and the defendant should meet at a certain time and place and settle the question. This was agreed to by the defendant; but before the time arrived, without further notice, this action was brought.

By consent, the jury was allowed to pass upon the question of title and the amount of damages, subject to the opinion of the court (reserved), upon the question whether a demand and refusal were necessary.

Verdict for the plaintiff. Verdict set aside and nonsuit. Whereupon the plaintiff appealed. (336) If there were a conversion at any time during the whole transaction, the nonsuit was wrong. The wrongful assumption of title was such a conversion. Brown on Actions, 337; Hare v. Pearson, 4 Ire., 76; Ragsdale v. Williams, 8 Ire., 498. Belief in his claim will not excuse. Carraway v. Burbank, 1 Dev., 306; Dowd v. Wadsworth, 2 Dev., 130. The defendant's claim was for himself and not for another, which renders the conversion complete, notwithstanding the mistake. Lee v. McKay, 3 Ire., 29. 1. Notwithstanding the verdict upon the question of title, trover could not be supported upon what occurred before the second interview, without a demand and refusal. Neither the honest claim of the defendant, sanctioned by oaths and admitted by the plaintiff, nor the lawful possession which resulted therefrom, nor the use, consistent with the scope of such possession, was such conversion. Glover v. Riddick, 11 Ire., 582; Chit. Pl., Trover, Esp. N. P., 589, Buller N. P., 44.

2. Nothing occurred at the second interview to dispense with a demand. Indeed, after the agreement then made, it was a breach of faith to bring this suit without a demand. Even a demand would not have justified a suit before the day on which they were to meet. Ragsdale v. Williams, 8 Ire., 498. Trover "is an action ex delicto," and the gist of the action is a wrongful conversion. We concur with his Honor, that the facts do not make out a cause of action. The defendant had probable cause of action, and did believe that the mule was his property. The plaintiff, being also satisfied of that fact, put the mule in possession of the defendant. Up to that time there was nothing wrong, no tort. There was nothing in the defendant's putting the animal to work, for it could hardly be expected that he was to keep him (337) in his stable doing nothing. And when the plaintiff changed his opinion, and gave notice of it to the defendant, the latter did nothing wrong; on the contrary, he averred a willingness to do what was right, and there is no ground on which to question his sincerity; and, thereupon, it was agreed that the defendant should retain the possession until the Saturday following, on which day the parties were to meet, and endeavor to arrange the matter of controversy. After this agreement, it was well put by Mr. Young, on the argument, that the plaintiff was not at liberty to terminate the bailment, before the day fixed on, by a demand; but without deciding that point, we are entirely clear in the opinion, that the plaintiff could not, without a demand, commence an action treating the defendant as a wrongdoer, and thereby subject him to the costs of a lawsuit, before the day which had been agreed on, and up to which day the plaintiff had consented that the defendant should retain the possession. If the defendant had sold the mule, or attempted in breach of the bailment, to run it out of the State, the case would have assumed a different aspect, and put the defendant in the wrong. But there was nothing of this kind to terminate the bailment, and the plaintiff was wrong for bringing the action in violation of his agreement. The case seems to be so plain as not to call for an examination of the authorities. Indeed, there is no question about the principle on which the action is based, and the only difficulty which ever occurs is as to the application of the principle; but, in this case, the application as well as the principle, is free of difficulty. There is no error.

PER CURIAM. Judgment affirmed.

(338)