Lemuel Tuttle et al., Respondents, v. Calven P. Hazard Appellant

Lemuel Tuttle et al., Respondents, v. Calven P. Hazard Appellant. (Submitted October 7, 1881; decided October 25, 1881.) This was an action for the alleged conversion of a quantity of lumber. The sole inquiry here was as fo whether there was sufficient evidence of a demand and refusal. Plaintiffs proved the statements of defendant,. given as a witness upon trial of another action, to the effect, that three strangers called upon him, one of whom he recognized as Frisbie, one of the plaintiffs. Defendant stated the interview as follows •: “ Frisbie did not demand the lumber; he went in the yard and looked at the lumber- and said it belonged to him; I told him Mr. Peter had taken it under charge, and that it belonged to him, and he left it in my charge; I told him he could take it away only with an order from Mr. Peter.” Defendant was called as a witness-in his own behalf ; upon his cross-examination, he testifled to an interview between himself and plaintiffs’ counsel as follows: “You asked mé if I was willing Frisbie should go and take the lumber, and I told you that I could not deliver it without an order from Mr. Peter.” And afterward the witness added, “ I refused to give consent to have that lumber taken out of Bettis & Gandell’s yard; I refused you to give consent to have that lumber taken I refused to give it up to anybody without an order from Peter.” Held, that the evidence was sufficient to authorize the submission of the question of demand and refusal to the jury. J. B. & H. B. Greene for appellant. Lewis & Rice for respondents. [MAJORITY — Finch, J.,] Finch, J., reads for affirmance. All concur. Judgment affirmed.