Porell v. Cavanaugh , 69 N.H. 364 ( 1898 )

The evidence of one of the witnesses that he saw a pile of bills in the plaintiff's possession four or five inches thick, some of the top ones being fives, tens, and probably twenties, was competent on the question of the plaintiff's financial ability to buy so valuable a horse. This testimony was not mere conjecture, but was the statement of facts which would furnish the jury some assistance in determining whether the plaintiff had the money to pay for the horse, as he claimed he did.

The motion for a nonsuit was properly denied, although there was no evidence of a demand upon the defendants. A demand and a refusal are only evidence of a conversion, and a demand is only necessary when the circumstances as shown in evidence do not of themselves amount to an actual conversion. "To constitute a conversion of chattels, there must be some exercise of dominion over the property in repudiation of, or inconsistent with, the owner's right." Evans v. Mason, 64 N.H. 98; Baker v. Beers,64 N.H. 102. No demand was necessary here, because the defendants actually converted the horse. They took him from the plaintiff and held possession of him, claiming him as their own property. They exercised dominion over him in exclusion and defiance of the plaintiff's rights.

The evidence of the experts that the ink used by Burke in signing his name to the instrument, which the defendants claimed was the memorandum of the conditional sale signed by Burke, was different from that used by the witness Hunt, was properly admitted in support of the plaintiff's contention that Burke was induced to and did sign it at a subsequent date in Canada, and as rebutting the defendants' claim that it was executed in Boston, in the presence of Hunt. If both the parties had signed the paper at the same desk at the same time, it is probable that both would have used the same ink. The fact that they used different inks was competent for the jury to consider in determining who was right in regard to this question.

There was no error in the instructions given to the jury, nor in the refusal to give those which the defendants requested. If Burke purchased the horse by fraud from the defendants, the contract was voidable at the election of the vendors. They were entitled to affirm it, or to rescind it and recover the horse or its value from the fraudulent vendee. But in the meantime, if the vendee, while he was clothed with the possession and title of the property, sold it for a valuable consideration to one with no notice of the fraud, such purchaser would obtain a valid title. The innocent purchaser has a right to rely upon the apparent ownership which the vendor has conferred upon the fraudulent vendee and acquire from him a title which is good against the original vendor. Bradley v. Obear, 10 N.H. 477, 479; Kingsbury v. Smith,13 N.H. 109; Farley v. Lincoln, 51 N.H. 577, 581; Sleeper v. Davis,64 N.H. 59; Rowley v. Bigelow, 12 Pick. 307; Benj. Sales, ss. 433, 443. The instructions were in accordance with this principle.

Exceptions overruled.

PIKE and PEASLEE, JJ., did not sit: the others concurred.