Rice v. Yocum , 155 Pa. 538 ( 1893 )

Opinion by

Mr. Justice Green,

The learned judge of the court below gave very careful and entirely correct instructions to the jury on the subject of the ownership of the property in dispute. He charged them not only that the plaintiff must prove to their satisfaction that he was the true owner of the sewing machine and money which the defendant obtained, but also that if the wife of the plaintiff misled the defendant by representing the property as liers when it was not hers, her husband would be responsible for her deceit and could not recover. The jury found for the plaintiff and there was abundant evidence that the machine and the money both belonged to him, and there was no evidence of any misrepresentation of the wife. The defendant, although he was agent for the Singer Manufacturing Co., in his deal with the plaintiff’s wife, would be personally responsible to the true owner for his act in taking into his possession the property in question whether he delivered the property to his company or not. The action having originated before a justice, where the distinction between the forms of action is not necessary to be observed, was to be tried on its merits on appeal under the act of 1810, without reference to the form or name of the action. Conceding the necessity for a demand for the return of the goods, we think the letter written by the plaintiff’s wife, but with his name attached, was evidence from which the jury might infer a demand. It distinctly called upon the defendant to take away the machine he had left and to bring back the old one, and the defendant admits having received that letter, and did not claim that he did not, or could not, understand what he was called upon to do.

In 1 Chitty on Pleading, 178, ed. of 1885, it is said: “It is not necessary that the demand should be made upon the defendant personally. A demand in writing left at the defendant’s house is sufficient. ... It is not necessary to adhere to any particular form or manner of making the demand provided it be distinctly notified to the defendant, who is the claimant, and what goods are demanded.”

But as the defendant took possession of the machine under the unauthorized sale by the wife and turned it over to his company, this itself was a conversion, and a demand and refusal were not necessary. IChitt. 174: “ It seems that the mere talcing an assignment of goods from a person who has no right or authority to dispose of them is a conversion; for this is an assumption by the assignee of a property in the goods.” In Brisben v. Wilson, 60 Pa. 452, it was held that upon an unauthorized sale of the goods of a tenant under a warrant of distress, trover could be maintained against the purchaser, and that the mere act of purchase was a conversion. Sharswood, J., said: “ And as no legal right or title can grow out of a trespass the sale is invalid and trover can be maintained against the purchaser for the goods. The unlawful act of purchase itself is a conversion: McCombie v. Davies, 6 East, 538.”

The jury was properly cautioned that a woman might own a sewing machine as well as her husband under the laws of Pennsylvania, and that they must be satisfied from the testimony that the plaintiff was the real owner of the machine and the money before they could find a verdict in his favor. We do not discover any error in the charge or in the answers to points.

Judgment affirmed.