Hall, plaintiff in error vs. Robinson, defendant in error

Hall, plaintiff in error vs. Robinson, defendant in error. On the trial of an action of trover for a watch, it was proved that R. asked H. foi a loan of $50, and consented to give the watch as security. H. took the watch and went away, and after about twenty minutes returned, saying that he could not let R. have the money, and that he had not got the. watch. On being asked by R. for an explanation, he declined to give any. Upon this evidence, it seems, that the refusal of the court to charge the jury that H. had tortiously converted the watch, was proper. And held that in such a case R. might sell the watch so as to give the purchaser a right to demand it of H., and, on his refusal to deliver it up without sufficient excuse, to maintain trover for it. And, per Hoyt, J., although a mere right of action for a tort not assignable, yet after the conversion of a chattel, the owner may sell the chattel itself, so as to give the purchaser a right to reclaim it from the wrongdoer, or maintain trover for it on a demand made in his own behalf, and a refusal to give it up. The case of Gardner v. Adams (12 Wend. 207), commented upon. Error from the New-York common pleas, where Robinson sued Hall in trover for the conversion of a gold watch and chain worth $120. On the trial the plaintiff called as a witness one Arnold, who testified that in May, 1847, he occupied an office in the same.building with the defendant; that he asked the defendant for a loan of $50, and consented to leave his watch and chain as security; that the defendant took the watch, went out, and was gone about twenty minutes, when he returned, and remarked that he could not let the witness have any money, and that he had not got the watch; that he, the witness, did not know what the defendant meant, and on asking him for an explanation, the defendant said he could have no words with him. No other communication passed between them at that time. A few days afterwards the witness sold the watch and chain to the plaintiff. The plaintiff then called another witness, who testified that he called on the defendant to demand the watch and chain, and showed him the bill of sale to the plaintiff. The plaintiff said he knew nothing about them: That the next day the witness demanded the property of the defendant, who said he was busy and could not attend to it. Upon this evidence the counsel for the defendant moved for a nonsuit, on the ground that if any conversion had been made out, it took place before the sale of the watch from Arnold to the plaintiff, and that the action should therefore have been brought in the name of Arnold. The motion was denied, and the defendant excepted. The court then charged the jury that if the watch and chain were in the defendant’s possession, and the plaintiff was the owner, the action would lie after a demand; but if the sale to the plaintiff was after the conversion, the defendant was entitled to a verdict. The defendant excepted. The jury found a verdict for the plaintiff, and after judgment thereon the defendant brought error to this court. John Aitken, for plaintiff in error, insisted that the conversion was complete before the sale of the property to the plaintiff. (Farrington v. Payne, 15 John. 431; Murray v. Burling, 10 id. 172; Mitchel v. Williams, 4 Hill 13.) The right of action, therefore, being complete before the sale, and being a right *of action r*nqr for a tort, it could not be assigned so as to give the as- L signee a right to sue in his own name. (Gardner v. Adams, 12 Wend. 297.) If the conversion was not before the sale, then there was none proved. N. W. Roberts, for defendant in error. [MAJORITY — Jewett, Ch. J. Hoyt, J.] Jewett, Ch. J. Hall acquired actual possession of the property in question by delivery from Arnold, the owner, under an implied undertaking to advance by way of loan to Arnold the sum of $50. His original possession, therefore, was lawful. Hall failed to make the loan ; upon this, Arnold was entitled to be restored to the possession of his property ; but until Hall was guilty of some tortious act, in reference to the property, there was no conversion. The evidence showed that Hall failed to make the loan and did not restore the property to Arnold—and remarked that he had not got it. Whether he had disposed of it, while he was absent a few minutes apparently for the purpose of raising the money to make the loan, or whether he then had it in his possession, was not shown ; Arnold did not know, nor understand what he meant, when he informed him that he could not let him have the money, and that he had not got the property. This evidence fell far short of showing any tortious act. It did not show that Hall had either disposed of, or destroyed the property. Until a wrongful detention after a demand and refusal was shown, there was no evidence of a conversion. Arnold made no demand, and there being no disposition or destruction of the property by Hall shown, his possession continued lawful, until Arnold sold the property to Robinson, and Hall detained it after demand by him. The judgment should be affirmed. Hoyt, J. I do not deem it necessary, in this case, to determine whether Arnold might or might not have treated the fraudulent conduct of Hall as a conversion of the watch in question. For admitting that he might, and that he could, before selling the watch, have sustained an action of trover therefor in his own name, still he was not bound to do so. „He had *a perfect right either to reclaim or sell the property. It is true he could not transfer to Robinson a mere right of action, so as lo enable him to bring trover in his own name, founded upon evidence of a conversion while Arnold was the owner of the watch. Arnold did not pretend to sell any such right of action. He sold the watch itself, and in such form as to pass a good title thereto to Robinson. After that purchase Robinson had a right to take the property from Hall; or he might, as he did in this case, demand it of him, and upon-his refusal to deliver it up, without a sufficient excuse, treat such refusal as a conversion, and bring trover for it in his own name. The case of Gardner v. Adams, (12 Wend. 297,) was cited by the defendant’s counsel to show that the action could not be maintained in the name of Robinson. It does not clearly appear from the report of that case whether the demand and refusal was before or after Adams became the assignee of the mortgage upon the property in question. If it was, after the assignment, I think the decision cannot be upheld either upon principle or authority, (a) In this case, as there was a sale of the watch to Robinson, and a subsequent demand of it made upon the defendant, and a refusal by him to deliver it, Robinson had a right to treat such demand and refusal as evidence of a conversion of the watch after he became the owner of it, and bring an action therefor in his own name. The judgment should be affirmed. Judgment affirmed. See The Brig Sarah Ann, (2 Sumn. Rep. 206, 211.)