Dunham v. Converse , 28 Wis. 306 ( 1871 )

DixoN, C. J.

The first, second and third requests to charge made by the defendant below, now the plaintiff in error, related to the necessity of a demand of the property and proving it, before the action could be maintained by the plaintiff. Begard being had to the testimony given by the defendant himself, those requests might, possibly, with propriety have been granted. Yet this was very doubtful upon the whole testimony in the case. It was very doubtful upon the whole testimony, and even upon the testimony of the defendant himself. It was not clear that the defendant was in the situation of a person who had received the property innocently and in good faith from the wrong-doer, so as to have made a demand from him necessary before action brought. On the contrary, if we say nothing about his agency and actual interference in the taking and removal of the property, which the testimony of other witnesses tended very strongly to establish, it was still evident that he knew all about the title and interest of the plaintiff, and by what right his wife and Ketchum claimed to remove and control the property. He was familiar with the facts, and did not pretend otherwise at the trial. It would seem, therefore, that he was bound to know that his wife was a wrong-doer in taking the property — that she had no right to remove it, nor Ketchum to deliver it to her. If this was so, then it was very questionable whether any demand was necessary. If it was, it must have been because a demand is required of a person who receives goods from a trespasser knowing him to be such and receives them, too, from him while engaged in the very act of trespass known to have been committed. It seems almost undeniable that no demand is necessary in such a case, whatever may be the relations between the person receiving the property and the person taking it.

But, however the law may be upon this point, we are of opinion that there was no error in refusing the requests, because the same had already been in substance given in the general charge, and the court was not required to repeat them. The ground of refusal does not appear, and, for aught we know, the reason assigned by the court may have been, that the jury had been previously so instructed. The requests to so charge came after the written charge of the court, and after the instructions given at the instance of the plaintiff, and were refused last in order upon the trial. The written charge fully and fairly explained the nature and theory of the defense claimed to have been proved by tbe defendant, and, taken in connection witb tbe instructions given at tbe request of tbe plaintiff, and wbicb immediately followed, must bave been understood by tbe jury as requiring a verdict for tbe defendant, provided they found bis theory of tbe case, or tbe facts as claimed and insisted upon by bim, to bave been true. Tbe court said: “ It is for you to determine, from tbe evidence in tbis case, applying it to tbe law as I shall give it to you, whether tbe theory of tbe plaintiff or defendant has been established.”

And under tbe first instruction given at tbe request of tbe plaintiff, and which was tbe only one bearing upon tbe point, tbe jury were required to find that 11 tbe defendant unlawfully took and carried away and converted to bis own use ” tbe prop-in dispute, in order to return a verdict for tbe plaintiff. Tbe jury must therefore bave found that tbe defendant did in fact take, cany away and convert tbe property to bis own use; and as there can be no question about tbe sufficiency of testimony in that particular for tbe consideration of tbe jury, it follows, if there was error in refusing tbe defendant’s requests to charge in respect to tbe necessity of a demand, that it has now become wholly immaterial. If tbe defendant actually took, carried away and converted tbe property himself, as tbe jury bave found upon a sufficiency of evidence, then no demand was necessary, and no error of tbe court in relation thereto, or in refusing to charge as requested, will be allowed to disturb tbe verdict.

As to tbe fourth request to charge, it is enough to say that it assumed as a fact a matter wbicb should bave been submitted for tbe determination of tbe jury. It assumed as a fact that tbe ten acres upon wbicb tbe wheat spoken of was raised, was land owned and occupied by tbe plaintiff individually. Tbe testimony, as reported to tbis court, is by no means clear, and tbe bill of exceptions does not purport to contain all of it. All that appears here respecting tbe ten acres of wheat, or tbe ownership of tbe land, are a few words in tbe testimony-of tbe plaintiff in reply to or explanation of some testimony given by tbe defendant, wbicb last does not appear. Tbe plaintiff spoke of tbe land as bis own, and at tbe same time said tbe wheat that grew tbereon was part of tbe same wheat wbicb be claimed as administrator in tbe suit. Tbe inference must be, when be said tbe land was bis, that be claimed it in bis representative capacity. At all events, it was for tbe jury to say wbat tbe fact was, and not for tbe court to assume it by a positive instruction that tbe plaintiff could not recover for that wheat.

By the Court. — Judgment affirmed.