Adams v. Abbott

• Decision Date: 01 January 1830
• Citation: 2 Vt. 383
• Parties: CHARLES ADAMS v. JOHN ABBOTT
• Court: Vermont Supreme Court

2 Vt. 383

CHARLES ADAMS v. JOHN ABBOTT

Supreme Court of Vermont, Chittenden

January, 1830

[Syllabus Material] [Syllabus Material]

This was an action that came up from the county court on the following exceptions allowed on trial: " This was an action of trover for sundry articles of property. Plea, not guilty, with notice. The action was against Abbott and Moses Bliss; and judgment had, at a previous term, been rendered against Bliss and in favor of Abbott; and had been reviewed by the plaintiff, as against Abbott. The plaintiff's testimony tended to prove that, in the year 1821, Abbott commenced a suit in his favor against Adams, and put the writ into the hands of Bliss who was then a deputy sheriff, and turned out the property described in the declaration to him who thereupon attached the same, and without any further direction from Abbott, put it into a building belonging to Mark Rice, a few rods from the dwelling house of Adams, where it had ever remained, without any interference of Abbott. Also, that, at the term of the Supreme Court, holden at Burlington in January, 1823, Abbott entered a nonsuit in his action, of which Adams immediately had notice. Plaintiff also gave evidence, tending to prove, that, a short time previous to the commencement of this suit, he demanded the property of Abbott, who thereupon replied that he had never had any thing to do with the property since he turned it out to Bliss, the officer; that the officer had taken his own mode to keep it; that he, Abbott, had never had the custody of, nor in any way interfered with it; had no claim upon it, and presumed Mr. Bliss would give it up on request. Abbott proved, that the wagons, boards, posts, wood, oxen and cows, mentioned in the declaration, were at the time of the attachment receipted, or procured to be receipted, to the said Bliss by the plaintiff, and that the books were never removed from his possession. Abbott by his counsel contended, and requested the court to charge the jury, that, upon the above evidence, if believed, the plaintiff could not maintain his action. The court refused so to charge; but did charge the jury, that it became the duty of the said Abbott, immediately upon the determination of his suit against Adams, to return the property to him; that no demand on him or the officer was necessary; and that, if the jury found that he had neglected so to return it, the plaintiff was entitled to recover for the property not receipted, nor returned. Verdict for the plaintiff. To which charge defendant excepts, & c."

Judgment of county court reversed and, A new trial granted.

Sawyer and Thompson, for defendant.--1. Trover will not lie in a case like the present, where the defendant never had the custody of the property, nor attempted to exercise any controul over it, except merely turning it out to the officer for him to attach. A demand and refusal to deliver is no conversion, but only evidence of a conversion; and when it fully appears that there has been no conversion, trover cannot be maintained. 2 Mod. 244, Mires v. Solebay.--Bull. N. P. 44.--5 Burr. Rep. 2825. If the plaintiff, in this case, can complain of any thing, it is the detention of his property pending the first suit, and not the conversion of it. The mere omission to return the goods, after the lien is off, is no conversion. 6 East Rep. 540, McCombie v. Davies.--2 Bos. & Pul. 438, Bromley v. Coxwell.--1 Chit. Pl. 154.--2 Phil. Ev. 118, note a.

2. The defendant contends, that, where the goods were never in his possession, refusal is not evidence of an actual conversion.--1 Camp. 440, Smith v. Young.

3. The proof of the defendant's refusal, in this case, amounts to nothing. It is no denial of the plaintiff's right. It asserts none in the defendant. He merely stated that he had never interfered with the property, and referred the plaintiff to the officer, who, the defendant presumed, would re-deliver it on request. This is no evidence of a conversion.--Green v. Dunn, 3 Camp. 215.

4. The defendant contends, that the case does not state a single act of the defendant, amounting to an " assumption upon himself of the property, and the right of disposing of the plaintiff's goods," which Lord Holt defined a conversion to be. 6 Mod. 212. It will surely be admitted that the failure of the defendant's suit, or his subsequent failure to return the property, or any mere nonfeasance of the defendant, cannot render his original taking unlawful, so that by relation back, it may assume the character of a conversion. There is no fact in the case, which could make the defendant a trespasser by relation. If trover can be maintained at all, it must be in consequence of something subsequent to the taking; and therefore the charge of the court rested the conversion on the only possible ground on which it can be sustained, viz. a simple nonfeasance of the defendant. On this point, the authorities already cited are conclusive; and it would be easy to accumulate them. In connection with the fact, that the defendant has never been in possession, actual or constructive, of the property in question since the attachment, the case states another fact which cannot, and ought not to, be without its influence. The property for which this action was brought, was deposited by the officer on Mark Rice's premises, but a trifling distance from the plaintiff's house; and the probability is, that at the determination of Abbott's suit, the property was as near at hand, and could have been obtained by the plaintiff as easily, as in the situation it was before the attachment. After the determination of Abbott's suit the plaintiff could have taken it without any possible objection or...