Ward v. Huff

• Decision Date: 22 March 1920
• Docket Number: No. 62.,62.
• Parties: WARD v. HUFF.
• Court: New Jersey Supreme Court

109 A. 287

WARD

v. HUFF.

No. 62.

Supreme Court of New Jersey.

March 22, 1920.

Action by Frederip D. Ward against Floyd C. Huff. On rule to show cause. Rule to show cause made absolute.

Argued November term, 1919, before the CHIEF JUSTICE, and MINTURN and BLACK, JJ.

Patrick Henry Maley, of Hackensack, for plaintiff.

Edward R. MacGlynn, of Newark, for defendant.

MINTURN, J. The suit was in trover and conversion, to recover damages for the value of an automobile truck against which defendant held a bill for repairs amounting to $631, and upon which $100 had been paid. To pay the balance the defendant, by written agreement on December 3, 1917, with plaintiff, retained the truck for the purpose of working out the amount conceded to be due. Subsequent to this agreement, plaintiff alleges an oral agreement by which defendant was to return the truck in the spring of 1918, or to deliver another truck, which plaintiff was to use in his express business. Defendant denied making the second agreement and the case was submitted to the jury on that issue. The jury found for plaintiff. To recover it was essential that plaintiff prove a demand for the return of the truck, since it came into defendant's possession legally. 1 Chitty's Pleading, 157, and cases; Corona Kid Co. v. Lichtman, 84 N. J. Law, 363, 86 Atl. 371.

We are unable to find in the case any substantial evidence of a demand and refusal, which would turn the otherwise lawful possession of the defendant into an act of tort-feasance, 1 Chitty, 159.

Nor was there any substantial proof as to the value of the car at the time of the conversion. The only testimony on this subject for the plaintiff was that of one Herring, who had not seen the car for at least a year prior to the trial; and opposed to that was the testimony of witnesses who examined the car and fixed its value at $300. The charge of the court was sufficiently specific upon this point, but the jury evidently ignored it and found a verdict for $2,600, which apparently was based upon Herring's valuation, plus interest and plaintiff's claim of loss of earnings, which he fixed at $1,000.

The Garage Keeper's Lien Act (chapter 312, L. 1915) was invoked, but it cannot affect the question at issue, since the defendant was not holding the car under the lien claim given by that act, but under the special written or oral agreement, which, while it did not invalidate his claim for repairs, in effect was a waiver of his claim to hold the car under the lien, and effectually worked a novation of his claim. 2 Kent's Com. 638, and cases; Winter v. Coit, 7 N. Y. 288, 57 Am. Dec. 522; Dows v. Morewood, 10 Barb. (N. X.) 183; 17 R. C. L. 607, and cases cited.

We find no warrant for the rule of damages applied in the case, which concedes to the plaintiff not only the value of the truck and interest thereon, but damages occasioned,...