Brandenburg v. Northwestern Jobbers Credit Bureau
| Decision Date | 11 February 1915 |
| Docket Number | 19,097 - (288) |
| Citation | 151 N.W. 134,128 Minn. 411 |
| Parties | PEARL BRANDENBURG v. NORTHWESTERN JOBBERS CREDIT BUREAU and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county to recover $800.63 value of the goods alleged to have been converted. The case was tried before Catlin, J., who at the close of plaintiff's case granted the motion of defendant Credit Bureau to dismiss the case as to it. From an order denying plaintiff's motion for a new trial, she appealed. Affirmed.
Conversion -- evidence.
1. To constitute a conversion of personal property of another there must be some exercise of the right of complete ownership and dominion over it to the total exclusion of the rights of the owner, or else some act done which destroys it or changes its character or in some way deprives the owner of it permanently or for an indefinite length of time.
Conversion.
2. Conversion may be proved by demand and refusal of possession but evidence of this is not necessary if there is other evidence of actual conversion.
Conversion -- commingling of goods.
3. Neglect of a bailee to notify the bailor of a sale of the premises where a gratuitous bailment is kept is not a conversion where no loss or misappropriation follows; nor is the advertising of goods for sale through mistake a conversion so long as there is no sale or loss or misappropriation; nor is the sale of a few articles which have in some manner become commingled with the bailor's goods a conversion of the whole stock, in the absence of evidence as to how the commingling took place.
Charles M. Brewer and F. A. Pike, for appellant.
Todd & Kerr and Walter Fosness, for respondent.
This is an action in conversion. The court dismissed the action at the close of plaintiff's case and plaintiff appeals. The facts are as follows:
Plaintiff's husband conducted a general store at Faribault. Plaintiff conducted a millinery business on a balcony of the store. The husband failed and transferred his stock to a representative of defendant Northwestern Jobbers Credit Bureau, for the benefit of creditors, and the bureau took charge of the stock and building. When this occurred, plaintiff discontinued her millinery business, packed her goods in boxes, and left them in the balcony, by permission of the bureau's representative. She paid nothing for the privilege. In other words, the bureau was a gratuitous bailee. There is evidence that the representative of the bureau agreed to notify plaintiff when it disposed of the stock or put any one else in possession. A few weeks later the husband's stock was sold to defendant Wendlandt and he was put in possession of the store. Wendlandt at once proceeded to advertise the stock for sale. Under the mistaken belief that the millinery was part of the stock he had purchased, he prepared an advertisement announcing a "trustee's sale" of the stock, and included the millinery stock in the advertisement. Before the sale commenced, he discovered his error. At no time after the sale commenced did he make any claim to the stock of millinery in the balcony. On the contrary, the evidence is undisputed that during the sale he instructed his clerks that the millinery stock belonged to plaintiff, and directed them not to touch it. There is evidence, however, that some small articles from this stock became in some manner commingled with the general stock and were sold by Wendlandt's clerks, and there is evidence that his wife took some articles from the millinery stock. There is also evidence that when an inventory of the millinery stock was taken, about a month later, the amount on hand was nearly $100 less than when inventoried at the time of closing the store. The bureau's representative did not notify plaintiff of the sale to Wendlandt, but a friend of plaintiff notified her by telephone before the trustee's sale commenced. Plaintiff went to the store a very few days later. She took no exception to any conduct of defendants, in fact she opened negotiations for leaving the stock in the balcony and for renting the balcony from defendant Wendlandt in order to reopen her millinery business.
Plaintiff does not sue for conversion of the few articles claimed to have been taken and sold, and she asks for no recovery on that basis. Her contention is that both these defendants converted the whole stock of millinery to their own use. The question is, did the evidence make out a prima facie case of such conversion? We hold it did not.
It is a little difficult to frame a comprehensive definition of conversion. In Burroughes v. Bayne, 5 H. & N. 296 Baron Bramwell...
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