Adams v. Castle

• Decision Date: 25 May 1896
• Citation: 67 N.W. 637,64 Minn. 505
• Parties: ADAMS v CASTLE ET AL.
• Court: Minnesota Supreme Court

64 Minn. 505

67 N.W. 637

ADAMSvCASTLE ET AL.

Supreme Court of Minnesota.

May 25, 1896.

(Syllabus by the Court.)

1. Refusal to restore goods on demand is only evidence of conversion, and, whenever the conversion can be otherwise proved, it is not necessary for the plaintiff to allege or prove a demand and refusal.

2. A variance between the pleading and the proof is waived by a failure to seasonably object to the evidence on that ground.

3. When it clearly appears that the variance between the allegations of the pleading and the proof has not misled the adverse party to his prejudice in maintaining his action or defense upon the merits, this court, on appeal, will affirm and remand the cause, with directions to the trial court to permit the party to amend his pleading so as to conform to the facts proved.

Appeal from district court, Hennepin county; Robert D. Russell, Judge.

Action by Florence E. Adams against Arthur H. Castle and others. Verdict for plaintiff. From a refusal of an order to dismiss the action, and the denial of a motion to direct a verdict for defendants, and a denial of a new trial, Arthur H. Castle appeals. Affirmed.

A. C. Finney, for appellant.

A. S. Keyes, for respondents.

MITCHELL, J.

The allegations of the complaint are that the plaintiff was the owner and entitled to the possession of a piano, of the value of $300; that the defendant, being in the possession of the piano, unlawfully disposed of and converted it to his own use, to plaintiff's damage in the sum of $300. The answer consists of a general denial. It appeared from the evidence that in February, 1892, the plaintiff purchased the piano from the defendant, on the installment plan, for $320, for which she gave him her promissory note, payable in monthly installments of $10, with interest. This note or contract provided that the title, ownership, and right to take possession of the property should remain in the defendant until fully paid for, when the title, ownership, and right of possession should vest in the plaintiff. This contract also provided that, if the plaintiff should default in any of the payments, the defendant might reclaim possession of the piano, and sell the same, upon giving plaintiff written notice of the sale 10 days prior thereto, and out of the proceeds retain the unpaid purchase money, and pay the surplus, if any, to the plaintiff. Possession was delivered to the plaintiff, who retained it until November, 1893, she in the meantime making payments on the purchase money to the amount of $160. On the date last named the plaintiff, being considerably in arrears in her payments, and about to change her place of residence, delivered the piano to the defendant, to be by him kept and stored for her until she “was more settled, and could make some definite arrangements in regard to paying him the balance” of the purchase money. We are satisfied, from an examination of the evidence, that at this time there was no modification or relinquishment of defendant's right, under the original contract, to assert his right to the possession of the property, and to sell it. Neither was there any change of the provision that in case he sold it he should give the plaintiff 10 days' written notice.

Plaintiff never made any further payments, and the piano remained in defendant's possession until July, 1894, when he sold and disposed of it without giving plaintiff any notice of the sale. At this time she was in arrears, including interest, about $180. Soon after the sale, plaintiff went to defendant to make a payment of $20, when she was informed that the piano had been already sold and disposed of. She then made a demand for it, but made no tender of the amount due. Evidence of all these facts was introduced without any objection (material here), except a general objection at the commencement of the trial to the introduction of any evidence, on the ground that the complaint did not state a cause of action; it appearing that the defendant was in possession at the time of the alleged conversion, and no demand was alleged. There was nothing in this objection. Refusal to restore goods on demand is only evidence of conversion, and, whenever the conversion can be otherwise proved, it is not necessary for plaintiff to show a demand and...