Roper Wholesale Grocery Co. v. Faver

Russell, J.

Faver, as trustee for D. L. Carter, bankrupt, brought a suit against the Roper Wholesale Grocery Company, by which he sought to recover certain personal property described in the petition, which it was alleged had been taken from the assets of the bankrupt by the defendant. Upon the call of the case the' plaintiff abandoned that portion of the petition which sought to recover the property on the idea that by the delivery of the property the bankrupt had made a preference in'violation of the bankrupt law, and the ease proceeded to trial upon that portion of the petition which can very well be treated as an ordinary action of trover.. The jury returned a verdict in favor of the plaintiff for $125.81, as the difference between the actual value of the property converted and the interest of the defendant therein under its reservation of title. The court refused a new trial, and exception is taken to this judgment.

There is conflict in the evidence, but, in view of the verdict, we must assume that the testimony for the plaintiff represents the truth of the transaction. ' According to this testimony, a representative of the Roper Wholesale Grocery Company took -the property from the bankrupt without his consent. The goods and fixtures which were the subject-matter óf the present suit were assigned to one Heard to pay a debt of $250, and the title to the personalty was passed by the writing with a provision that any payments on it would reduce the debt evidenced thereby. This contract and assignment of title was transferred by Heard to the Roper Wholesale Grocery Company for a consideration of $2-15. The agreed valuation of the articles, title to which was conveyed to Heard and by him transferred to the Grocery Compaq, as evidenced bv the writing, was $363. The conversion was shown to have occurred on January 28, 1908, which was the date upon which Mr. Carter testified that Roper took the property from his possession.

By exceptions pendente lite the plaintiff in error complained that the judge refused to direct a verdict in favor of the defendant at the close of the testimony. No valid exception can ever be based upon the refusal of a trial judge to direct a verdict in favor of either party. The judge may direct a verdict, at his peril, and if the verdict directed is the only finding that could properly and legally have been reached under any view of the case, he has effected an economy of time, and his judgment will not be reversed, because the error is harmless. Inasmuch, however, as the only ground upon which the direction of a verdict is sanctioned is that it is such a harmless error that it will not be regarded, there is no case in which a judge can be required to direct a verdict or in which it can be said that he errs if he refuses to do so.

The real question in the case is presented by the exception of the plaintiff in error to the following charge of the court. There being evidence that the property was of a value greater in amount than the amount of the plaintiff's indebtedness to the defendant, the court charged the jury as follows: “If you find, from the evidence in this case, that E. L. Carter & Co. did execute and deliver this instrument, to which I have called your attention, to G-. B. Heard, to secure a debt due by Carter & Co. to Heard, and that thereafter Heard, as set out here on the back of this paper, transferred it to Eoper Wholesale Grocery Company, and defendant paid to Heard the debt owed to Heard by R. L. Carter & Co., and to secure which this paper was given, and if you find that Carter & Co. has never paid to Eoper Wholesale Grocery Company this Heard debt, and that the property enumerated in the writing includes the property in controversy, and if you further find that Mr. Eoper, in ’behalf of the Eoper Wholesale Grocery Company, the defendant, took possession of this property in controversy,, without the consent of Carter, — forcibly took possession of it, — and if you further find that at that time E. L. Carter & Co. had the right of possession to this property, notwithstanding that Eoper Wholesale Grocery Company, as transferees of G. B. Heard, had title to it, if the firm of E. L. Carter & Co. bad the right of possession, then T charge you that the plaintiff in this case would be entitled to recover, and the measure of his recovery would be this: In the event that you find that the value of the property was greater than the amount of the debt, if any, which was secured by this instrument of writing, then the plaintiff would be entitled to recover the difference, with interest on the difference, whatever you find it to be, at seven per cent., from the date of conversion. If you find that the value of the property is equal to or less than the amount of the debt, then there could be no recovery for the plaintiff.” The exception to this charge is that it is error because it would have been necessary for the plaintiff to show title in himself before he would be authorized to recover at all. Of course, we understand this to mean that the plaintiff makes the contention that, as there was evidence that the bankrupt had conveyed title to the property to the Grocery Company as the assignee of Heard, he could not maintain the action, and it is contended, in the second place, that the measure of damages is improperly stated, and the case as submitted to the jury was an entirely different one from that brought by the plaintilf in its petition. It is not necessary, in order to maintain an action of trover, that the plaintiff have title. If he have either such a title or property as to confer right of possession, he may maintain trover as against one who wrongfully deprives him of his right. “To maintain an action of trover, the plaintiff must show title in himself, or the right of possession wrongfully withheld from him by the defendant.” Without going at any length into the subject, it may be said that in this case the plaintiff had merely given to the defendant’s assignor a conditional bill of sale; and the authorities are abundant that when, by the terms of a conditional -sale, the buyer is entitled to possession, he may maintain trover for a conversion of the chattel which was sold to him, against third persons, and even against the seller himself. Mitchell v. Georgia & Alabama Ry., 111 Ga. 762 (36 S. E. 971, 51 L. R. A. 622); Aldrich v. Hodges, 164 Mass. 570 (42 N. E. 107); Burt v. Dutcher, 34 N. Y. 493. A wrongful sale by a conditional vendor is a conversion against the vendee. Smith v. Wood, 63 Vt. 534 (22 Atl. 575).

Judgment affirmed.