Hett v. Boston & Maine Railroad , 69 N.H. 139 ( 1897 )

"To constitute a conversion there must be some exercise of dominion over the property in repudiation of, or inconsistent with, the owner's rights." Evans v. Mason, 64 N.H. 98; Baker v. Beers, 64 N.H. 102. A refusal to deliver property to the owner upon his demand is not of itself a conversion. It is evidence tending to show a conversion, but like other inconclusive acts is open to explanation. It is sufficient answer that it is not in the power of the defendant to comply with the demand. Johnson v. Couillard, 4 Allen 446. When the plaintiff made the demand upon the defendants at Nashua, the property was not in their possession. By the attachment it passed into the custody of the law. Verrall v. Robinson, 2 C. M. R. 495; Stiles v. Davis, 1 Black 101; Osgood v. Carver,43 Conn. 24, 30; Fletcher v. Fletcher, 7 N.H. 452. It was as effectually out of their possession and beyond their control as it would have been if the sheriff had removed it from the car and carried it away. They could not lawfully prevent the officer from taking it, nor retake it from his possession. State v. Field, 18 N.H. 34; State v. Richardson,38 N.H. 208. Instead of asserting, they disclaimed any dominion over the property by informing the plaintiff that it was not in their possession, but in the custody of the law.

The refusal of the defendants' station agent at Portsmouth to deliver the goods unless the plaintiff would pay or promise to pay the charge of $8 for the detention of the car at Nashua presents a different question. It is not necessary to determine whether the plaintiff was liable to the defendants for that charge. It may be assumed that he was not. The agent informed the plaintiff that he had no authority to deliver the property without payment of the $8, but offered to deliver it on payment of that sum (to be refunded if his employers should find the charge unwarranted, or remit it), or upon a promise to pay in case they should not remit it; and neither of these propositions being accepted, declined to deliver the goods until he could communicate with the defendants and obtain instructions.

If there is a reasonable doubt of the defendant's right to the possession of the property, a refusal to deliver it until a reasonable opportunity is had to ascertain his right is not sufficient evidence of a conversion. In such a case the law does not require one to act on the instant and either comply with or deny the demand at his peril. Robinson v. Burleigh,5 N.H. 225; Fletcher v. Fletcher, 7 N.H. 452; Sargent v. Gile, 8 N.H. 325,331; Vaughan v. Watt, 6 M. W. 492; Hollins v. Fowler, L. R. 7 H. L. 757, 766. It is immaterial on what particular point material to the justice of the demand the doubt exists. It may arise upon the question of lien by the holder, or the amount of the lien, as well as upon the identity or authority of the person making the demand. Where the facts are undisputed and the doubt is upon a question of law, a refusal to deliver until the advice of counsel can be obtained may be considered as the result of a reasonable hesitation in a doubtful matter. Cushing v. Breck, 10 N.H. 111,116; Eastman v. Association, 65 N.H. 176. Upon the facts stated, it could not be found that the station agent's doubts whether the charge for the detention of the car was lawful, and whether the defendants would insist upon or waive its payment, were not reasonable; and his refusal to deliver the property until he could obtain the defendants' instructions was not sufficient evidence of a conversion. The question whether the time required for or occupied in procuring the instructions was reasonable (Sargent v. Gile, 8 N.H. 325, 331) does not arise, because the plaintiff brought his action immediately after the demand.

Whether the same result might be reached upon the ground that the plaintiff's demand upon the station agent, who he knew had no authority to comply with it, was not a demand upon the defendants (3 Stark. Ev. 1500; Poll. Torts 291, Pothonier v. Dawson, 1 Holt N. P. 383; Storm v. Livingstone, 6 Johns. 44; Mount v. Derick, 5 Hill 455; Goodwin v. Wertheimer, 99 N.Y. 149), is a question not considered.

Judgment for the defendants.

BLODGETT, J., did not sit: the others concurred.