Waring v. Pennsylvania Railroad Co.

• Decision Date: 04 January 1875
• Parties: Waring <I>versus</I> Pennsylvania Railroad Co. for use.
• Court: Pennsylvania Supreme Court

76 Pa. 491

Waring versus Pennsylvania Railroad Co. for use.

Supreme Court of Pennsylvania.

November 6, 1874.

January 4, 1875.

November 6th 1874.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR and GORDON, JJ.

Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1874, No. 213.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

W. S. Purviance, (with whom was S. A. Purviance), for plaintiff in error.—Trover does not lie when by mistake of the plaintiff chattels not the defendant's are delivered to him and mixed with his own so as to be undistinguishable and inseparable, and so that when demanded by the plaintiffs they can not be delivered. The act of defendant not being tortious, trover will not lie: 9 Bacon's Abridgment 629; Stephen on Pleading 137; Youl v. Harbottle, Peak's N. P. 49; Stephenson v. Hart, 4 Bing. 476; Packard v. Getman, 4 Wendell 613; Rushworth v. Taylor, 3 Ad. Ellis N. S. 699. Where one coming lawfully into possession of the property of another parts with it before a demand, he is not liable in trover: 1 Hilliard on Torts, 592, 693; Boobier v. Boobier, 39 Maine 406; Kelsey v. Griswold, 6 Barbour 436.

J. Dalzell, (with whom was J. H. Hampton), for defendants in error.—Trover will lie although the conversion is the result of a mistake: Forsyth v. Wells, 5 Wright 294, 2 Troubat & H. Prac. 49. Every assumption of property in, or exercise of authority over, the goods of another, inconsistent with the title of the rightful owner, or in exclusion of his right, is a conversion: Bristol v. Burt, 7 Johns 254. The question as to the right of a claimant to have his property again in its original state, or improved in character, did not arise in this case. If it had, it could not have affected the question of the form of remedy, but only of the measure of damages, and the question of intent would then have become material: Salisbury v. Coon, 3 Comstock 379. Evidence of conversion in an action of trover is matter of fact for the jury, and although the evidence be not strong, the judgment will not be reversed because the jury found that fact: Harger v. McMains, 4 Watts 418. Demand and refusal are only evidence of conversion, and if conversion be shown otherwise, they need not be proved: Horsefield v. Cost, Add. 153; Kelsey v. Griswold, 6 Barbour 440; Jacoby v. Laussatt, 6 S & R. 300.

Evidence of set-off is not admissible in an action of tort. Evidence therefore that the defendant had not received his exact number of cars was irrelevant: Neiler v. Kelly, 19 P. F. Smith 403; Work v. Bennett, 20 Id. 484; Fowler v. Gilman, 13 Metc. 267; Chamberlin v. Shaw, 18 Pick. 283; McCombie v. Davis, 7 East 5; Doane v. Russel, 3 Gray 382; Romig v. Romig, 2 Rawle 249.

Mr. Justice GORDON delivered the opinion of the court, January 4th 1875.

Lord Mansfield defines the action of trover to be, "a remedy to recover the value of personal chattels wrongfully converted by another to his own use:" 1 Chit. Plead. 146. The taking may have been lawful, hence the gist of the action lies in the wrongful conversion. Where one has the lawful possession of the goods of another, and has not converted them, this action will not lie until there has been a refusal to deliver them upon demand made. Ordinarily where such goods have been converted by the bailee, the law presumes it to be wrongful, and the action may be brought without a previous demand; but such presumption may be rebutted, showing a permission from the plaintiff to convert the property. So we may suppose a case of this kind: A. purchased a ton of wheat...