Gore v. Izer

• Decision Date: 21 May 1902
• Citation: 90 N.W. 758,64 Neb. 843
• Parties: GORE v. IZER.
• Court: Nebraska Supreme Court

64 Neb. 843

90 N.W. 758

GORE

v.IZER.

Supreme Court of Nebraska.

May 21, 1902.

Syllabus by the Court.

It is not necessary to the maintenance of an action for conversion, by reason of the wrongful sale of a plaintiff's goods, to show that defendant exercised control over the property with knowledge of the plaintiff's rights, or that a demand was made for the goods while they were in defendant's possession. Pease v. Smith, 61 N. Y. 477.

Commissioners' opinion. Department No. 3. Error to district court, Gage county; Stull, Judge.

Action by Walter T. Gore against John Izer. Judgment for defendant, and plaintiff brings error. Reversed.W. H. Richards and A. H. Babcock, for plaintiff in error.

R. W. Sabin, for defendant in error.

AMES, C.

This is an action for the conversion of a hog of the alleged value of $13.50. If the hog was converted by the defendant, there is evidence tending to show that the fact was accomplished by mistake in this manner: Both parties had a considerable number of animals in the same inclosure. On the day on which the offense is charged as having been committed the defendant shipped his hogs on board the cars to market. Immediately, at least soon, thereafter the hog in question was missed. It is not unlikely that it became mixed with the defendant's hogs, and was shipped and sold by him without his knowledge, although he denies that such was the fact, and the evidence bearing upon that point is conflicting. The jury returned a verdict for the defendant under the usual instructions defining “conversion” as consisting in the unlawful disposing of or appropriating to his own use by one man of the property of another. But the plaintiff asked that the court give also the following instruction:

“The jury are instructed that the conversion of property may be shown by the exercise or control over the same inconsistent with the right of the owner, and by depriving him of its possession without regard to the intent with which the act is done.

If you find from the evidence that on the 31st day of May, 1898, the defendant had for shipment sixty-five (65) head of hogs in the stock yards at Liberty, Nebraska, and that the plaintiff had sixteen (16) head of hogs in said yards during said day, and that said hogs became mixed, as defendant was unloading his hogs through the shute into the car, and when separated, only fifteen hogs were in plaintiff's inclosure, and delivered to him in said separation, and that the defendant loaded the hog described in plaintiff's petition with his hogs on the car, and shipped and sold the same with his hogs and converted the money to his own...