Bruner v. Dyball

• Decision Date: 30 April 1866
• Citation: 1866 WL 4635,42 Ill. 34
• Parties: JAMES D. BRUNERv.CATHARINE DYBALL.
• Court: Illinois Supreme Court

42 Ill. 34

1866 WL 4635 (Ill.)

JAMES D. BRUNER

v.CATHARINE DYBALL.

Supreme Court of Illinois.

April Term, 1866.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The opinion of the court contains a statement of the case.

Mr. J. S. PAGE, for the appellant.

Mr. JOHN LYLE KING, for the appellee.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It appears from this record, that appellant, on the 21st day of October, 1865, sued out a writ of replevin from a justice of the peace, for the recovery of a sewing machine. It also appears, that he, on the day set for the trial, went to appellee, and informed her that the suit had gone against her, and that he had the costs to pay. It seems that he then went before the justice of the peace and had the suit dismissed, and paid the costs. Afterward, on the 30th of October, 1865, appellee sued out a writ of replevin from the Superior Court of Chicago, returnable to the ensuing December Term. A declaration was filed, containing two counts in replevin and one in trover. Pleas were filed, issues joined, and a trial had before a jury, resulting in a verdict against appellant for $117.75. A motion for a new trial was overruled, and judgment rendered on the verdict; and defendant below prosecutes this appeal to reverse that judgment.

It is urged, that, inasmuch as appellee failed to prove a demand, she was not entitled to recover.

The question is, then, presented whether, in an action of trover, a demand and refusal are necessary to a recovery. In the case of Johnson v. Howe, 2 Gilm. 342, it was said, that a conversion is not produced by a demand and refusal, but it is the evidence of a conversion. In that case it was held, that evidence that the defendant had given directions to his agent not to deliver the property to the plaintiff, tended to prove a detention in replevin and a conversion in trover. It has been held, that a wrongful assumption of the ownership of property is a conversion. And, whenever a conversion is shown, the action may be maintained. When the property has been sold and converted into money, a demand is unnecessary, because an actual conversion has taken place. So, generally, when a party commits a trespass, by wrongfully taking possession of property of another, although it may be under a claim of right, a recovery may be had.

The rule is laid down by Chitty, in his treatise on pleading, 176, that a conversion may be by the wrongful taking of personal property; by some other illegal assumption of ownership, or illegally using or misusing property; or by a wrongful detention of goods. He also says, that, wherever trespass will lie for taking the goods of the plaintiff wrongfully, trover will also lie. And, in cases of a conversion by a wrongful taking, a demand and refusal are not necessary. But he also says, that, if possession is obtained under color of a contract, the action will not lie, unless a case of fraud can be proved. He also announces the rule, that a wrongful assumption of ownership in, or right of disposing of, goods, may be a conversion in itself, and render a demand and refusal unnecessary. The distinction seems to be, that, where a party comes rightfully into possession, but his possession has become wrongful, then a demand and refusal are necessary, to prove that he has converted the property to his own use. But when the possession is taken under a wrongful claim of ownership, the taking is, of itself, a conversion.

In this case, the possession was obtained under a claim of right. It is true, the forms of law were used to put appellant into possession, but the jury were fully warranted in believing, from the evidence, that the whole proceeding was designed as a fraud upon appellee, and that he procured the dismissal of the suit without a trial by false representations to appelle...