Hallenbake v. Fish — 8 Wend. 547

Majority

p. 547

Hallenbake vs. Fish.

ALBANY,

Jan. 1832.

Headnote

An inn-keeper is not liable in trover for property entrusted to him in the line oí his business, unless an actual conversion be shewn: a demand and refusal is not sufficient evidence of a conversion, unless at the time of the demand the goods were in the possession or under the control of the defendant.

Error, from the Greene common pleas. Hallenbake sued Fish in a justice’s court, and declared in trover for detaining a bridle and saddle left in the possession of Fish as an inn-keeper. Fish pleaded the general issue. The plaintiff recovered before the justice, and the defendant appealed to the Greene common pleas. On the trial in that court, the plaintiff proved that he stopped at the inn of the defendant, and delivered his horse to the ostler of the defendant to be fed ; that the ostler took the saddle and bridle off the horse and deposited them in a barn ; and that when the plaintiff called for his horse, the saddle and bridle could not be found. The plaintiff demanded them of the defendant; what had become of them, or that at the

p. 548

time of the demand they were in the possession of the defendant was not shewn. The common pleas ruled that the action of trover would not lie, and nonsuited the plaintiff, who brought error to this court.

J. Van Vleck, for plaintiff in error.

J. L Bronk, for defendant in error.

There can be no doubt that the defendant would be liable on the facts presented, in an action on the case upon the custombut if the same rule is applicable in an action of trover against an inn-keeper which governs in that action against a common carrier or wharfinger, then an actual conversion must be proved. In Packard v. Getman, 4 Wendell, 613, it was decided, that to charge a common carrier in an action of trover, an actual conversion must be proved ; that in such a case, a demand and refusal to deliver the goods is not sufficient evidence of a conversion, unless the goods were in the possession of the defendant, or under his control at the time of the demand. If the goods are stolen or lost by accident, the carrier is not liable in trover; the refusal to deliver on demand in such case raises no presumption of conversion ; but the carrier is liable in another action. The liability of the common carrier and inn-keeper is very similar ; they are both bailees, and liable for losses under similar circumstances ; and the same rules seem to be applicable to both as to the mode of subjecting, them to liability ; and if so, trover cannot be maintained, though case may.

Judgment affirmed.