La Place v. Aupoix — 1 Johns. Cas. 406

Majority

p. 484

La Place against Aupoix.

Headnote

If the defendant admits that he had the goods of the plaintiff, and that they are lost, this is sufficient evidencé of a conversion, to maintain trover, without showing a demand and refusal.

A demand of payment or satisfaction generally, for the goods, is.a sufficient demand. , ¿

This was an action of trover, for a quantity of indigo.' Plea not guilty. The cause was tried at the last circuit before Mr. Chief Justice Lansing. The plaintiff gave in-evidence a written note, without date, from the defendant to the plaintiff, in the words following: ■ .

“ Sir and Friend,

“ You may rely on my diligence to make the most of your .indigo, of which you have a cask and six barrels and a half, weighing nett 1373 pounds. I will hold the. proceeds- to your .orders, when collected.”

A witness deposed, that he was present at a conversation between the plaintiff and the defendant, before: the commencement of the present action, in which the plaintiff demanded the money for his indigo; that the defendant said that the -goods were lost, and that the insurance was not yet settled; that the plaintiff replied he had not authorized the defendant- to sell them, or to make insurance. The witness understood -from the conversation, that the property had been delivered to the defendant in the island~Bff-Hispaniola, and" had been shipped to .the United States; and that the .insurance had been made in England, but was not yet paid.

[*407] *The counsel for the defendant, insisted that the plaintiff had failed in his proof, and that a verdict ought -to-be given for the defendant.

The judge observed to the jury, that in a case of this nature, it was necessary to prove a demand óf the goods specifically, unless there was evidence of their having been converted into money; and that where there was such evidence, proof .of .a demand of payment, and refusal, was sufficient to

p. 485

establish a conversion; that although he was inclined to think that the plaintiff had not produced s.uch evidence, nor supported his action, he thought the equity of the case was on his side ; and that if, therefore, the jury were satisfied that the property in question had been turned into cash at the time of the demand of payment, they might then consider the refusal as sufficient proof of conversion, and find a verdict for the plaintiff. '

The jury found for the plaintiff accordingly, for the full, amount of the indigo,

A motion was now made to set aside the verdict, and for a new trial. , *

' A. Bleecker and Hopkins, for the plaintiff.

B. Livingston, for the defendant.

The defendant in this case admitted that he had the goods in question, and that he' had lost them. This is sufficient evidence of a conversion; it would have •been idle to make a formal demand of goods, after the defendant had declared that they were lost. Besides, the plaintiff •demanded payment and satisfaction generally, and that was sufficient. [Thompson v. Shirley & Body. 1 Esp. Cases, 31. 4 Term Rep. 260. 1 Burr. 393.]^[1]

Rule refused.

(a) (a) Accidental loss of goods by a carrier, is not a conversion. 4 Phil. Ev. Cow. & Hill’s ed. 925, Ross v. Johnson, 5 Burr. 2825. Kirkman v. Hargreaves, 1 Selw. N. P. 425. Dwight v. Brewster, 1 Pick. 50 , 53. Owen v. Lewyn, 1 Ventr. 223. Anon. 2 Salk. 655. " There are two cases seeming •to the contrary of this rule; but in one of them, (Greenfield Bank v. Leavitt, 17 Pick. 1 ,) this point was not raised, but the defendant’s liability for a loss was assumed, the case turning wholly on the question of damages ; and in ihe other, (La Place v. Aupoix, principal case,) the case sufficiently shows that there was an actual conversion.” 2 Greenleaf’s Evid. 531, n. (7.) Generally as to demand, see 4 Phillips’ Evid. Cowen & Hill’s ed. 225, 226, 227. S Greenleaf’s Evid. 533, 534. Starkie’s Evid. 3d Am. ed. 1496, et seq. “ The demand in trover being only for tfye purpose of giving the defendant an opportunity, of either restoring the goods in specie, or of making satisfaction to the grarty to whom they belong, (per Lord Kenyon, in Thompson v. Shirley, 1 Esp. N. P. C. 33,) no particular form or manner of making the demand is es- , sentially requisite, provided it be distinctly notified to the defendant who is the Claimant, and what goods are demanded. Where the plaintiff, the vendor of *486 a house, brought trover for various articles, some of them being goods, and the remainder fixtures, which he had left in the house on delivering it up to the defendant, the vendee, and demanded them all as fixtures, and the refusal was ‘ of the fixtures demanded,’ this demand was held to be insufficient to enable the plaintiff to recover the articles which were not fixtures, it having been decided upon other grounds that the fixtures were not recoverable. (Colegrave v. Dias Santos, 2 B. & C. 76. 3 D. & R. 255.) A demand in writing of ‘ the amount of the goods you have disposed of,’ (Thompson v. Shirley, 1 Esp. N. P. C. 31,) or a demand of ‘ satisfaction,’ have been adjudged to be sufficient for this purpose. (Rookeby’s case, Clayton, 122. cit. 1 Esp. N. P. C. 31.) If two distinct demands be made at the same time, one verbally and the other in writing, proof of the verbal demand alone will be sufficient, and no evidence of the written request need be given. (Smith v. Young, 1 Camp. 439.) A demand in writing, left at the defendant’s house, may be sufficient. (Logan v. Houlditch, 1 Esp. N. P. C. 22. 1 Chitt. 159.) If the demand be in writing, notice should be given to produce it in the usual way. (Thompson v. Shirley, 1 Esp. N. P. C. 31. Logan v. Houlditch, ibid.) If an oral as well as a written demand have been made, it is sufficient to prove the former, (Smith v. Young, 1 Camp. 440,) although both were made at the same time. (Ibid.) A letter demanding the deed sought to be recovered in trover, may be read by the plaintiff as notice to the defendant, although it will not be evidence of any statement therein. (Whitehead v. Scott, 2 M. & Rob. 2 .)” Steph. N. P. 2687.