Butler v. Wolf Sussman, Inc.

• Decision Date: 03 February 1943
• Docket Number: 27764.
• Citation: 46 N.E.2d 243,221 Ind. 47
• Parties: BUTLER v. WOLF SUSSMAN, Inc.
• Court: Indiana Supreme Court

46 N.E.2d 243

221 Ind. 47

BUTLER v. WOLF SUSSMAN, Inc.

No. 27764.

Supreme Court of Indiana

February 3, 1943

Louis Rosenberg, of Indianapolis, for appellant.

Theodore R. Dann, Taylor E. Groninger, and Alfred K. Berman, all of Indianapolis, for appellee.

SHAKE Judge.

In 1920 the appellant inherited a diamond ring from her mother. She afterwards married and lived with her husband for thirteen years, separating on January 8, 1940. They are not divorced but the husband's whereabouts are unknown. While packing her possessions at the time of the separation, the appellant missed her ring. She made a demand for it upon her husband and threatened to sue him, whereupon he produced and delivered to her a ticket disclosing that on November 18 1938, he had pledged the ring as his own to the appellee, a licensed pawnbroker, for a loan of $25, which was afterwards increased to $35. This was without the prior knowledge of the appellant.

The appellant's complaint is in three paragraphs. The first and third are for replevin of the ring and the second for its conversion. There was an answer in general denial which was not good under the requirements of Rule 1-3 (1940 Revision). The appellant would have been entitled to judgment on the pleadings for the possession of her ring had she asked for it, but she waived that relief by going to trial on the merits. 1 Watson's Works Practice,§§ 633 and 634.

There was a tried by the court resulting in a judgment to the effect that the appellant take nothing. The only alleged error properly presented is that the decision is contrary to law. In support of the judgment the appellee says: (1) That there was no evidence of a demand upon it for the return of the ring prior to the commencement of the action and (2) that the appellant was not entitled to recover by reason of the Acts of 1935, ch. 195, § 32, § 18-3233 Burns' 1933 (Supp.) § 13220-33, Baldwin's Supp.1935. This statute provides: 'A pawnbroker shall have a first lien on all pledges for the amount of his loan, interest and charges in all cases except where the pledging or possession thereof by the pledger constituted larceny at the common law or except where a prior lien exists by virtue of any other statute.'

The first question for consideration is whether a demand was necessary. The general rule appears to be that replevin will not lie for property lawfully in the possession of another until a proper demand has been made for its delivery. Lewis v. Masters, 1846, 8 Blackf. 244; Torian v. McClure, 1882, 83 Ind. 310. This rule is based upon the presumption which the law indulges that one who has lawfully come into possession of property which he is not entitled to retain will, upon demand, surrender it to the person entitled thereto and that he ought to be afforded an opportunity so to do without being subjected to the inconvenience and expense of a law suit. 54 C.J., Replevin, § 69b, p. 449. Wood v. Cohen et al., 1855, 6 Ind. 455, 63 Am.Dec. 389. The rule stated has been so applied as to require a demand, where the defendant is an innocent purchaser for value and without notice from one who was a wrongful taker or was without authority to sell. Torian v. McClure, supra; Conner et al. v. Comstock et al., 1861, 17 Ind. 90; Wood v. Cohen et al., supra; Ledbetter v. Embree, 1895, 12 Ind.App. 617, 40 N.E. 928. The application of these principles would seem to have required a demand under the facts of the case at bar.

The appellant contends, however, that the appellee waived necessity for a demand by filing a redelivery bond, by contesting the suit on its merits, and by claiming the protection of § 32 of the Pawnbrokers Act of 1935. The cases of Hays v. Burns, 1939, 106 Ind.App. 374, 19 N.E.2d 862, and Jordan v. Jordan, 1922, 78 Ind.App. 617, 136 N.E. 866, are relied upon. The first case goes no further than to hold that no demand is necessary where, prior to the commencement of the action, the party in possession assumes a position disclosing that if a demand had been made it would have been unavailing. The second case holds that a waiver may result from the character of the defense made to the action as well as from the statements and conduct of the defendant prior thereto. We have found no Indiana case indicating what particular conduct, subsequent to the...