Hovland v. Farmers Union Elevator Company, a Domestic Corporation
| Decision Date | 13 November 1936 |
| Docket Number | 6434 |
| Citation | 269 N.W. 842,67 N.D. 71 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; Daniel B. Holt, Judge.
Action by John Hovland against the Farmers Union Elevator Company. From an adverse judgment, plaintiff appeals.
Affirmed.
Syllabus by the Court.
1. The measure of damages for the conversion of personal property is its value at the time of conversion, with interest thereon from that time, or, if the action has been prosecuted with reasonable diligence, the highest market value between the time of conversion and the verdict without interest at the option of the injured party, and a fair compensation for the time and money properly expended in the pursuit of the property. Section 7168, Compiled Laws of 1913.
2. One who innocently purchases and takes possession of stolen personal property thereby exercises dominion and control over it inconsistent with and in denial of the rights of the true owner, and may be sued in conversion by such owner without previous demand; the time of conversion being the time of purchase.
Acker & Shafer, for appellant.
To constitute a conversion of personal property of another there must be some exercise of the right of complete ownership and dominion over it to the total exclusion of the rights of the owner or else some act done which destroys it or changes its character or in some way deprives the owner of it permanently or for an indefinite length of time. Brandenburg v Northwestern Jobbers' Credit Bureau (Minn.) 151 N.W 134; 65 C.J. 12, 15.
Any unauthorized act which deprives an owner of his property permanently or for an indefinite time is a conversion. Acts rightfully done do not constitute a conversion. 65 C.J. 28, 30.
Mere interference with another's property or his rights therein does not give rise to an action in trover, unless such acts are done with the intention of depriving the owner permanently of his property. Bowe v. Palmer (Utah) 21 Ann. Cas. 1191.
Conversion is any distinct act of dominion or control, wrongfully exerted over the chattels of another in denial of his right thereto. Leonard v. Sehman, 206 Iowa 277, 220 N.W. 77; Taugher v. Northern P.R. Co. 21 N.D. 111, 129 N.W. 747; 26 R.C.L. 1098; Adams v. Maxcy, 214 Wis. 240, 252 N.W. 598; 2 Cooley, Torts, 3d ed. 859; Lund v. Keller, 203 Wis. 458, 233 N.W. 769; Merx v. Croxen, 102 Minn. 69, 112 N.W. 890; 26 R.C.L. 1110.
Measure of damages for conversion may be the value of the property at the time of conversion. N.D. Comp. Laws 1913, § 7168; Huether v. McCaull-Dinsmore Com. 52 N.D. 721, 204 N.W. 614; Rolette State Bank v. Minnekota Elevator Co. 50 N.D. 141, 195 N.W. 6; Cunningham v. Lahr Motor Sales Co. 50 N.D. 846, 198 N.W. 347.
The receipt of property by a bailee from a thief does not of itself constitute a conversion thereof. A demand by the real owner is necessary to put the bailee in default. Brenshouse v. Abbott, 45 N.J.L. 531; Burditt v. Hunt, 25 Me. 419; Nanson v. Jacob, 6 S.W. 246.
Refusal of an innocent purchaser of stolen property to honor the demand of the true owner for its possession renders his possession unlawful. Employers' F. Ins. Co. v. Cotten, 51 A.L.R. 1462.
Purchase of stolen goods innocently and in good faith does not, of itself, constitute a conversion, and demand and refusal are necessary to render the purchaser liable for conversion. Ochs v. Pohly, 87 A.D. 92, 84 N.Y.S. 1; Towne v. St. Anthony & D. Elevator Co. 8 N.D. 200, 77 N.W. 608; Plano Mfg. Co. v. N.P. Elevator Co. 51 Minn. 167, 53 N.W. 202; Sanford v. Duluth & D. Elevator Co. 2 N.D. 6, 48 N.W. 434.
When goods come to a person by delivery or by finding, he is not liable in trover for them without proof of a tortious act. Wilbraham v. Snow, 2 Saund. 47, h; Mulgrave v. Ogden, Cro. Eliz. 219.
Libby & Harris and Henry Leum, for respondent.
Demand and refusal prior to the bringing of the action of trover need not be shown when an innocent purchaser of goods from one who has no title has sold the same, or exercised ownership by letting the property, or where it appears that the defendant purchased the property from one who had no right to sell, and holds it to his own use. 26 R.C.L. 1122; Brandenburg v. N.W. Jobbers' Credit Bureau, 128 Minn. 411, 151 N.W. 134; Tuttle v. Campbell (Mich.) 42 N.W. 384.
One who buys property must, at his peril, ascertain the ownership, and if he buys from one who has no authority to sell, his taking possession, in denial of the owner's right, is a conversion. Cooley, Torts, 2d ed. 528-532; 2 Addison, Torts 6th ed. p. 631.
In an action to recover damages for the conversion of goods, the only purpose of a demand is to establish the fact of conversion. Gross v. Scheel, 67 Neb. 223, 93 N.W. 418; Gore v. Izer, 64 Neb. 843, 90 N.W. 758; Company A v. Hughes, 53 N.D. 291, 205 N.W. 722.
A demand for personal property and a refusal to comply with it, merely evidences the fact of conversion. State ex rel. Hermann v. Farmers Elevator Co. 59 N.D. 679, 231 N.W. 725; Adams v. Castle, 64 Minn. 505, 67 N.W. 637; Hagen v. Atlantic Elevator Co. (Minn.) 69 N.W. 1; More v. Burger, 15 N.D. 345, 107 N.W. 200; Stutsman v. Cook, 53 N.D. 162, 204 N.W. 976.
This is an action for the conversion of 684.9 bushels of wheat which were stolen from the plaintiff and sold and delivered by the thieves to the defendant, whose manager purchased the grain without knowing that it was stolen. The theft and sale took place during the last part of December, 1932, and the first part of January, 1933, the delivery being made by one Moe. On May 14, 1934, the defendant delivered to plaintiff's attorney a statement of grain that had been hauled by Moe, being the grain which is involved in this action. On September 5, 1934, the plaintiff served upon the defendant a demand to settle for the grain "by making restitution of the grain above described, or grain of like kind and quantity or of paying therefor at the current market price" with which demand the defendant refused to comply. The plaintiff promptly thereafter instituted this action and demanded judgment of the defendant for the value of the wheat as of the date of the demand. The wheat was worth about thirty cents a bushel when it was delivered to the elevator, and $ 1.03 a bushel when the demand was made. The trial court instructed the jury in effect that if it found that the defendant had converted the plaintiff's wheat that it should determine the value thereof on the date or dates of the purchase by the defendant, and that such value would represent the damages to which the plaintiff is entitled. The plaintiff contends that this is error and that the damage to which he is entitled should be measured by the value of the wheat as of the date of demand.
The measure of damages for the conversion of personal property is its value at the time of conversion, with interest thereon from that time, or if the action has been prosecuted with reasonable diligence, the highest market value between the time of conversion and the verdict without interest at the option of the injured party, and a fair compensation for the time and money properly expended in the pursuit of the property. Section 7168, Compiled Laws of 1913, First State Bank v. Osborne-McMillan Elevator Co. 53 N.D. 551, 207 N.W. 37; Lamoreaux v. Randall, 53 N.D. 697, 208 N.W. 104, 44 A.L.R. 1315.
The determination of this law suit depends upon when the conversion took place. The fact that a demand was made does not necessarily establish that conversion took place when the demand was refused. Demand and refusal do not constitute conversion, but proof thereof is merely evidence of conversion. More v. Western Grain Co. 31 N.D. 369, 153 N.W. 976; Rolette State Bank v. Minnekota Elevator Co. 50 N.D. 141, 195 N.W. 6; State ex rel. Hermann v. Farmers Elevator Co. 59 N.D. 679, 231 N.W. 725.
It is well settled that an innocent purchaser can obtain no title to personal property from a thief, for the thief has no title and has nothing to convey. A person who purchases property from the possessor thereof without ascertaining whether he has title thereto, makes the purchase at his peril and may be sued in...
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