Hand v. Scodeletti

TEMPLE, J.

This action is for the wrongful conversion of goods which plaintiff alleges composed the stock of plaintiff in a merchant tailoring 'business.

The complaint contains two counts or causes of action. The first is the usual complaint for conversion. In the second it is averred, in substance, that in May, 1896, plaintiff was carrying

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on the business of a merchant tailor in order that her family, consisting of her husband and six children, might be supported, and that while she was so conducting said business the defendants wrongfully entered into her store, took possession of her stock of goods, drove her agent from the store and closed the same, "whereby, and by reason whereof, plaintiff has been deprived of conducting her said business and the means of earning a livelihood for the support of herself and family, to her damage in the special sum of five hundred dollars.”

A general demurrer was interposed to the complaint for want of facts, which was properly overruled, as there can be no doubt that the first count does state a cause of action. It was not necessary to aver in that count that the property was plaintiff’s separate property, for in that count it does not appear that plaintiff was a married woman.

The plaintiff was not required to prove that she made defmand for the return of the goods before bringing her suit. The answer, although denying that demand was made, sets up affirmative matters which show that demand, if made, would have been unavailing.

Appellant contends that the court erred in refusing to allow him to ask on cross-examination plaintiff’s witness, Bine, the-following question: "How long after you purchased the goods-were they handed over to Mr. Hand?” The objection was that the question assumes the fact not proven. The witness purchased the goods, of which conversion was charged, at sheriff’s sale, and afterward sold them to plaintiff. He had not testified that he had ever handed them over to Mr. Hand, but to the contrary. The question.therefore assumes an important and disputed fact of which there was no evidence, and the existence-of which the witness denied. The question, therefore, assuming that the witness admitted as a fact what he denied, was unfair and improper.