Corona Kid Co. v. Liciitman
| Decision Date | 04 March 1913 |
| Citation | 86 A. 371,84 N.J.L. 363 |
| Parties | CORONA KID CO. v. LICIITMAN. |
| Court | New Jersey Supreme Court |
Error to Supreme Court.
Action by the Corona Kid Company, suing for the use of the Corona Kid Manufacturing Company of Maine, against Julius Lichtman. There was a judgment of the.Supreme Court for plaintiff, and defendant brings error. Affirmed.
Riker & Riker, of Newark, for plaintiff in error.
Pitney, Hardin & Skinner, of Newark, for defendant in error.
This writ of error brings under review a judgment of $23,000 obtained by the plaintiff below against the defendant below in an action for trover and conversion. The main controversy between the parties related to the ownership of certain portions of horse hides sent by the Corona Kid Manufacturing Company, the assignor (for whose use the plaintiff sues), to one Albert Guiges, for tanning. A written contract was entered into between the Kid Company and Guiges June 30, 1904, whereby inter alia it was agreed that the company was to ship daily certain horse hides for one calendar year, exclusive of Sundays and legal holidays, the said Guiges to tan the same at a certain rate per square foot, to do the work thereon in a first-class manner, and to make merchantable leather of as good quality as could be produced from the raw stock sent him by the company, and to ship them wherever directed by the company. Guiges also agreed to keep the horse hides so consigned to him by the company fully insured, the policies payable to the company. In performing the work under this contract, the grain or hair side of the hide was shaved, and these shavings were waste from the standpoint of leather, and along with other similar trimmings, the flesh from the hides and the hair taken off, by the custom of trade belong to the tanner. Soon after he commenced operations Guiges substituted a new process, and spilt instead of scraping a layer from the grain or hair side of the shell. This took a little further quantity from the piece, and perhaps injured the Kid Company's piece a little, and instead of returning the extra piece split off he sold these, as it is claimed, to the defendant.
On behalf of the defendant it is claimed that by splitting Guiges did what had been before done by shaving, and that, as the shavings were waste, so what his ingenuity saved by splitting still remained his as a substitute for waste. The plaintiff produced proof which tended to establish that In November, 1904, a verbal contract was made between the company and Guiges that he, Guiges, should pursue this method of splitting, and should tan the grains thus split off at a certain rate per foot, and that notwithstanding this agreement Guiges continued to sell the product from the company's horse hides by this new process of splitting to the defendant. For the purpose of establishing its ownership of the articles produced by Guiges' new process, the plaintiff adduced testimony that tended to prove a custom of the trade which, in the absence of contract, articles thus produced by a tanner of hides were to be returned to the consignor; the tanner retaining nothing but the waste as the hair only and little scraps from trimming. The plaintiff also relied upon other facts and circumstances establishing its ownership of the articles and the defendants' knowledge of such ownership by introducing testimony to the effect that Cuiges attempted to and did conceal the production of the articles by his new process, and kept a private set of books in which the sales thereof were recorded, the major part of them to the defendant, and that the defendant not only knew of the manner of dealing which Guiges was carrying on. but actually participated therein. No denial was made by the defendant of the purchase of the articles of Guiges, nor of the prices paid therefor.
The attack leveled against the validity of the judgment under review by the plaintiff in error in his brief, and to which the attention of the court is first directed, is that the plaintiff below was permitted to introduce testimony to show conspiracy, fraud, or collusion between the defendant below and Guiges to establish its action of trover and conversion under a declaration in which neither conspiracy, fraud, nor collusion was alleged. This contention is without any force. Of the many fictions which existed at common law the action of trover and conversion serves as a conspicuous example. If the plaintiff was confined in such an action to proof of the facts as set out in the declaration, he would almost invariably fail. Declarations in this form have been held sufficient to support the introduction of proof that the articles for which damages are sought were stolen, obtained by fraud in various ways, or in a lawful manner and then unlawfully withheld. The character of the proof introduced by the plaintiff to establish its cause of action against the defendant did not change the nature of the action nor the issue that was being tried, and imposed no greater burden of proof upon the plaintiff than what is required in an ordinary case of trover and conversion.
The nature of the action made it incumbent upon the plaintiff to prove its ownership of the goods and such act or acts of the defendant respecting the same as amounted to a repudiation of the plaintiff's title or to an exercise of dominion—i. e., ownership —over them. Woodside v. Adams, 40 N. J. Law, 417; Frome v. Dennis, 45 N. J. Law, 515. It was not necessary to prove this by any particular kind of evidence.
The plaintiff's proofs tended to establish that the defendant when he acquired the goods by purchase knew that Guiges had no title thereto, and participated with Guiges in repudiating the plaintiff's title to them, and in exercising ownership over them. It was therefore not necessary for the plaintiff to have shown a demand and refusal, since they are merely evidence of conversion, and there was evidence aliunde tending to establish a conversion by the defendant. Dwight, C, in Pease et al. v. Smith et al., 61 N. X. on page 477, in commenting upon the necessity of a demand and refusal as a prerequisite to maintaining an action of trover and conversion, says: "As according to these views the conversion took place at the...
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