Steele v. Marsicano
Before: Harrison
Synopsis
Conversion of Goods—Assumption of Dominion.—In order to charge a defendant with the conversion of the plaintiff’s goods, he must be shown to have done some act implying the exercise or assumption of title or dominion over them, Or some act inconsistent with the plaintiff’s right of ownership, or in repudiation of such right.
Id.—Acts in Ignorance of Owner’s Claim.—Asimple act of intermeddling with another’s property, which does not imply any assertion of title or dominion over it, and which is done in ignorance of the owner’s claim thereto, and without any intention to deprive him of it, will not constitute a conversion.
Id.—Conversion a Tort.—Conversion is a tort, and to establish it there must be a tortious act.
Id.—Bailment—Restoration to Bailor—Protection of Bailee.—If a bailee has the temporary possession of property, holding the same as the property of the bailor, and asserting no title in himself, and in good faith restores the property to the bailor, pursuant to the bailment, before he is notified that the true owner will look to him for it, no action will lie against him for its conversion.
Id.—Demand and Refusal—Impossibility of Compliance—Burden of Proof as to Ability.-—A demand of the property and a refusal to redeliver it do not of themselves constitute conversion, but are merely evidence from which a conversion may be established, and, as evidence, may be repelled by proof that a compliance was impossible; and a refusal is not evidence of conversion, unless the party has it in his power at the time to deliver up the goods, aud, in order to establish conversion by mere proof of demand and conversion, the plaintiff must also show the ability of the defendant to comply with the demand at the time when made.
Id.—Storing of Sugar in Warehouse—Unauthorized Purchase in Name of Bailee—Delivery to Bailor, When Not a Conversion. Where a person who obtained leave to store sugar in a warehouse assumed, without authority, to purchase the sugar from a third party in the name of the owner of the warehouse, and took a receipt in the name of the owner, the transaction does not establish any relation of contract between the owner of the sugar and the owner of the warehouse, who received the sugar as the bailee of the person delivering it; and when the sugar was removed from the warehouse by the bailor before the owner of the warehouse had any knowledge of the ownership of the sugar he is not liable for a conversion of it, aud cannot be made liable by a demand and refusal to deliver it to the owner at a time when it was out of his power to comply with the demand.
Harrison, J. The defendant carries on the business of packing fruit at a warehouse on Battery street, in San Francisco, under the name of Overland Packing Company, and is also the president of the American Salt Company, and has his office, or headquarters, at the office of that corporation, on Sacramento street, in that city. On March 19, 1892, a man named Latón visited the office of the salt company, and inquired for the defendant, saying that he wished to store some sugar with him at his place on Sacramento street. The defendant was absent from San Francisco, and the clerk in charge told him that they had no room, and on his inquiring, whether he could store it with the Overland Packing Company for a few days, the clerk, at his request, knowing that he was an acquaintance of the defendant, telephoned the inquiry to that place, and received an affirmative reply. Tjaj.on then visited the Overland Packing Company’s place, and, upon seeing where the sugar was to be stored, said he would send it up. He then went to the office of the plaintiffs, representing himself to be a broker for the defendant, and negotiated the purchase in his name of twenty-one tons of sugar, and directed that it be delivered to the Overland Packing Company. The plaintiffs employed their own drayman for that purpose, and when he reached the packing company’s place on Battery street the foreman of that place and one of his men took it on the trucks and ran it into the building, and a receipt for its delivery was given to the drayman in the name of the Overland Packing Company. The sugar was delivered on the 22d of March, but the defendant did not learn of its delivery until two days thereafter, when he immediately directed his foreman to tell Latón to take the sugar away, which he did, and Latón removed the sugar the next day. On the Monday following, which was collection day, the defendant received from the plaintiffs a statement of his account or purchase of the sugar, and immediately visited the office of the plaintiffs, and denied having made such purchase. The [669]record does not show whether the plaintiffs made any explanation of the transaction with Latón, or what steps they took to investigate the transaction, but they seem to have become satisfied that the purchase of the sugar had not been authorized by the defendant, as instead of bringing an action against the defendant for its value, they made a formal demand upon him about two weeks later for its redeliyery, and then brought this action charging him with the conversion of the sugar. Judgment was rendered in the court below in favor of the plaintiffs, and the defendant has appealed-.
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