Buffington v. Clarke

• Decision Date: 22 January 1887
• Citation: 8 A. 247,15 R.I. 437
• Court: Rhode Island Supreme Court
• Parties: BUFFINGTON v. CLARKE.

8 A. 247

15 R.I. 437

BUFFINGTON v. CLARKE.

Supreme Court of Rhode Island.

January 22, 1887.

On petition by defendant for a new trial.

Edward D. Bassett, for plaintiff.

Samuel W. Clarke and James Harris, for defendant.

PER CURIAM. The plaintiff sues the defendant in trover for the conversion of a watch. The action was tried in the court of common pleas, where a verdict was rendered for the plaintiff, and comes before us now on the defendant's petition for a new trial, on the ground that the verdict was against the evidence. The report of the testimony shows that the watch originally belonged to the plaintiff's father, who gave it to the plaintiff shortly before his death, and that the plaintiff allowed his father's widow to take and carry it, with the understanding that it should come back to him at her death. The watch remained in her possession until her death on September 13, 1884. She was a sister of the defendant, and died in his house, where she had been living for two or three years. There was some talk about the watch at the funeral, but no positive demand for it was made. Indeed, the plaintiff was not present at the funeral. A few days later the plaintiff sent a letter to the defendant demanding the watch. The defendant replied that his sister, the widow, had left a will which he had; that he would have it probated at the earliest moment; that the watch was safe; and that until somebody was appointed to take charge of his sister's effects he should not feel at liberty to pass the custody of it to anybody else. Thereupon the plaintiff began this suit; the writ therein being dated September 25, 1884. It does not appear that the defendant had any knowledge that the watch belonged to the plaintiff in the life-time of his sister, and he himself testified that his sister always treated and spoke of it as her own. Neither does it appear that the defendant, at the time of the demand, had any possession of the watch other than as he had possession of the other effects of his sister, by their being in his house, nor that he asserted any claim or right to it.

We do not think that the jury were warranted on this testimony in finding a conversion by the defendant. He did not absolutely refuse to deliver the watch to the plaintiff, but only declined to take it from among his sister's effects, and deliver it to him before the appointment of the executor. Proof of demand and refusal is only prima facie proof of conversion, and is always open to...