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Bellows, J. The use of the property attached, at the place where it was taken and as it was understood it should be used, was not a conversion. Beside, as no exception appears to have been taken to the instructions of the court on that point, it is to be presumed that the instructions were right.
Upon the other point the court instructed the jury, that the defendant was not bound to carry the property to the
*306 plaintiff, in order to return it, but that it was sufficient, if, having kept the property according to his contract, in some reasonable and suitable place, he was ready to deliver it up there, when called for by the plaintiff; and these instructions we think were correct.The property in this case was bailed to the defendant, to be kept without compensation until called for by the plaintiff, or his order. The articles were bulky, were kept at the place where they were when attached and when delivered to the defendant, and at the place where it was understood by the parties they might be used. On a demand being made by the plaintiff, though at a place other than the place of deposit, the defendant offered at once to go to the shop with the plaintiff and deliver to him the property, but the plaintiff did not go with him. He afterwards made a similar demand, and with a similar result.
This, we think, was no evidence of a conversion, and on that point the jury were correctly instructed. A receiptor is a mere depositary without reward, and the nature of the bailment is not changed by the receipt. In Phelps v. Gilchrist, 28 N. H. 277, it is held that a demand left at the receiptor’s house is not sufficient; that it should be made so that he could at once comply with it, and that he is not bound to carry the property to the sheriff. It will be observed, also, that the plaintiff made no objection to the place of delivery, nor did he designate any other, and it is by no means clear that in case he could require the property to be delivered at another place, he could charge the bailee with a conversion, without designating the place of delivery at the time of the demand — the defendant signifying his willingness to deliver it at once. It would at least be just and reasonable, that, as no time or place was expressly fixed in the contract for the delivery, but to deliver on demand, the plaintiff should accompany that demand with a designation of the place.
*307 However this may be, we are all satisfied that, upon the general ground before mentioned, there was no error in the instructions.The instructions that the demand must be made at the place where the defendant was bound to deliver the property, is not material, inasmuch as, upon the view we take of the law, there was no evidence of conversion, whether the demand was or was not sufficient.
There must, therefore, be
Judgment upon the verdict.
Document Info
Citation Numbers: 40 N.H. 302
Judges: Bellows
Filed Date: 6/15/1860
Precedential Status: Precedential
Modified Date: 11/11/2024