Murphy v. Hobbs

• Decision Date: 19 December 1884
• Citation: 8 Colo. 17,5 P. 637
• Parties: MURPHY v. HOBBS.
• Court: Colorado Supreme Court

5 P. 637

8 Colo. 17

MURPHY v. HOBBS.

Supreme Court of Colorado

December 19, 1884

Appeal from district court, Weld county.

W. B. Mills, for appellant.

Haynes, McCleary & Haynes, for appellee.

HELM, J.

There was no error in denying the motion for a continuance. No valid excuse was given for deferring for a period of nine months after suit commenced all effort to obtain the testimony of the absent witnesses. Neither does the affidavit show sufficient reason for the failure of appellant to attend the trial. Where there has been a conversion of property, and prior to suit it has been returned to and accepted by the plaintiff, or, if he has recovered the same, such return or recovery does not bar an action for the conversion. This fact may, however, be shown in mitigation of damages. Moak's Underh. Torts, 79, and cases cited; Murray v. Burling, 10 Johns. 170; People v. Bank of N. A. 75 N.Y. 547. When appellant compelled appellee to hitch his mules to the wagon and drive to Probst's, he not only exercised duress over appellee's person, but also dominion over his property and this dominion was further asserted by appellant's order, which was obeyed, that the teams and wagon should be left at Probst's. These acts were inconsistent with appellee's control of the property, and practically a denial of his right so to do. Coupled with the fact that appellant made no effort or offer to return the wagon to appellee, they fairly create the presumption that the former's control was exercised for his own benefit. 'Any distinct act of dominion wrongfully exercised over one's property in denial of his right, or inconsistent with it, is a conversion;' and this is true whether such wrongful dominion be exercised for the trespassers own, or for another's, use. Cooley, Torts, 448, and cases in note 5; And. Torts, 467. The fact if it be a fact, that appellant after carrying appellee before the justice and causing him to be incarcerated in the county jail, returned and took the mules, but left the wagon, does not avoid liability for the original conversion.

In view of all the evidence before us, we think appellant answerable in this action for the value of the wagon when converted, less its value when recovered by appellee. In our judgment, therefore, the amendment of the complaint allowed at the trial did not set up a new cause of action.

It is admitted by the pleadings that at the time of the conversion appellant...