Blunt v. Barrett

Headnote

Burden of proof—License—Conversion—In action of conversion where defense rests upon possession of the property under license, the original taking being admitted by plaintiff to have been under such license, the burden of proof is upon plaintiff to show discontinuance of said license before loss of the property.

Appeal from, judgment in favor of defendant, and from order denying motion for new trial.

Action for wrongful conversion of a small steam yacht belonging to plaintiff and of which defendant had been, during the summer of 1884, engineer and caretaker, in the employment of plaintiff.

Prior to December 21, 1884, the boat was laid up for the winter by the defendant, under direction of the plaintiff, and plaintiff testified that thereupon all employment by him of defendant and all the authority of defendant over the boat came to an end. Defendant afterwards removed the boat from the place where it had been laid up by him to another place, from which it drifted, went ashore and became a total wreck. Defendant testified that he was employed by the plaintiff to look after the boat during the whole winter, and in the exercise of the general license and powers thus conferred on him, he continued in charge of the boat, and in the exercise of his best judgment removed the boat from where she had been first placed by him, and that her loss was the result of an accident, and not of any negligence or wrong doing for which he was to blame. The trial judge charged the jury that the plaintiff, in order to recover, should establish the wrongful taking

of the boat, and for that purpose it was enough to establish a taking by defendant without authority or the color of authority. To this instruction counsel for plaintiff excepted, on the ground that it was sufficient for plaintiff to prove that he owned the boat, and that defendant took it away, and that the onus of proving license in defendant rested on him.

The Court at General Term (after stating the facts as above), said:—“ This exception is not well taken. The action is for a wrongful taking of the boat about January 15, 1885. That the defendant had a right to the possession of the boat by the consent and direction of the plaintiff up to the latter part of December, 1884, is testified to by plaintiff himself...... That such authority did not continue was the gist of the action, and the foundation of plaintiff’s claim; and unless that discontinuance was proved, the plaintiff could not recover. The plaintiff did, in his own testimony at the trial, give evidence that the defendant’s authority over the boat did not continue, but ceased by his full discharge in the latter part of December. In this he was contradicted by the defendant and by witnesses examined on his behalf, and the question was «left to the jury to decide on all the evidence. The affirmative of that issue was clearly with the plaintiff, and the trial on his part was conducted under that theory.....”