Andrews v. Carl

• Decision Date: 06 December 1904
• Citation: 77 Vt. 172,59 A. 167
• Court: Vermont Supreme Court
• Parties: ANDREWS v. CARL.

59 A. 167

77 Vt. 172

ANDREWS

v. CARL.

Supreme Court of Vermont Chittenden.

Dec. 6, 1904.

Exceptions from Chittenden County Court; James M. Tyler, Judge.

Action by Clayton Carl against John E. Andrews. Judgment was rendered in favor of plaintiff, and defendant brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

C. J. Ferguson and V. A. Bullard, for plaintiff.

C. J. Russell and E. C. Mower, for defendant.

ROWELL, C. J. Trover for a cow. The plaintiff's heifer calf strayed from his inclosure in 1895, and was soon after taken up by the defendant, but was not posted and advertised by him according to the statute, though he inquired of several if they had lost a heifer. His testimony tended to show that the calf grew up on his farm, and that he had had the use of it under a claim of ownership. The plaintiff discovered the cow in the defendant's possession just before suit brought, and demanded her of him, but he refused to give her up. No question was made on trial but that the plaintiff lost a heifer as he claimed, and the defendant admitted that one came into his possession soon after, but he denied that it was the plaintiff's, and the questions of identity and damages were the only questions submitted to the jury or asked to be submitted. The defendant pleaded the statute of limitations, and moved for a verdict because the action was barred thereby, which was refused The case, as presented, does not involve a consideration of the defendant's use and claim of ownership, for that matter was not submitted to the jury, and is not now relied upon; but the defendant puts his case solely on the ground that "the cause of action accrued ab initio without demand or notice, and more than six years before suit brought." This assumes, we suppose, that the mere neglect of the defendant to post and advertise as he should made him a wrongdoer, and constituted a conversion. But conversion, when applied to the law of trover, imports an unlawful act and a mere nonfeasance is not enough. It is generally laid down that any act that is an interference with the owner's dominion and right of property is a conversion. But from the nature of the action of trover it must be an interference that cannot, as against the owner, be justified nor excused by one who comes lawfully into possession. Here the defendant came lawfully into possession, and it does not appear that he did anything afterwards, and before the...