Phillips v. McNab , 16 Daly 150 ( 1890 )

Larremore, C. J.

Although on the claim of conversion there is much immaterial matter in the complaint, yet it contains sufficient to make out a case of trover; and it was upon the motion of appellant’s counsel that plaintiff, under order of the court, elected to proceed upon such theory of action. Absolute, unqualified ownership is not necessary in order to authorize a person entitled to the possession of property to sue for its conversion. A person entitled to the temporary possession of chattels for a particular purpose may maintain such an action. Add. Torts, marg. p. 524, and cases cited in note. In the case at bar there is probably enough evidence to support a finding that all title or interest of plaintiff’s brother in the suite of furniture had been transferred to her before the commencement of this action. It certainly appears that, as between her and defendant, plaintiff was entitled to the exclusive possession and control thereof. Defendant acknowledges and ratifies plaintiff’s right to the custody and disposal of the same by his letter of July 21, 1886, in pursuance of which he received the property. Whatever may have been the former ownership of the furniture, or the former relations of the parties, the present cause of action arises because defendant obtained the furniture from plaintiff under a promise to return it to her after making repairs, •and that he now refuses so to return it, though demand has been made. There is sufficient evidence of a demand, and the jury evidently believed plaintiff’s testimony, and by their verdict established that the furniture was not put into good condition according to the contract. Therefore, after waiting a reasonable time for such repairs to be made, plaintiff was not bound, as a condition precedent to making a demand, to tender the money which would have been due if defendant had performed his agreement. Indeed, according to plaintiff’s evidence, which the jury accepted as true, defendant positively refused to “put it in any better order than it was then in,” which, she avers, was anything but “good” order, if or was it error to admit plaintiff’s own testimony as to the value of second-hand furniture. She alleged that she had •attended many sales of such articles, and had herself bought and sold furniture at second-hand sales. This was sufficient to qualify her to express an opinion on this question, although she had never been regularly in the furniture business. The judgment should be affirmed, with costs. All concur.