covers damages commensurate with the injury to the property, and holds the excess above his interest in trust for the general owner;' having the possession of the property as a mere mandatary, liable over under his contract, he also recovers to the full extent of the loss or injury.2 And in these cases a recovery by the bailee is a bar to an action by the general owner.

§ 105. The general owner of chattels, let on hire for a definite term, cannot maintain trespass or trover for a conversion or for an injury to them during the continuance of the term, because these actions can only be maintained by a party in possession or having a present right of possession; and also because the general owner by a recovery in trover or in trespass of the full value of the property, might thereby overreach and appropriate his bailec's special property; and this he should not be permitted to do. Hence during the continuance of a bailment on hire for a given term, the general owner's true remedy against a stranger for an injury to the goods is by an action on the case." But where the bailee has put an end to the contract of bailment by any wrongful act, the general owner may maintain an action of trover for the property, against a purchaser with knowledge, or against the bailee;" and trespass or replevin against the purchaser in bad faith who takes the property, under the unauthorized sale."

§ 106. Burden of Proof. In actions against the mandatary, as in others, the burden of proof rests on the plaintiff to establish his cause of action, by proving each material fact necessary to create the liability. If the plaintiff in an action of case alleges the delivery of money, inclosed in a letter, to the defendant, and that he undertook and promised to take care of and carry the same safely from one place to another, and then deliver the package to the plaintiff; and that, although a reasonable time had elapsed, the defendant had not done so; the plaintiff will be bound to show, among other things, that the money was lost by

1 White v. Webb., 15 Conn., 302; Benjamin v. Stremple, 13 Ill., 466; White v. Bascom, 28 Vt., 269; Little v. Fossett, 34 Maine, 545.

2 Kellogg v. Sweeney, supra; Moran v. Portland, supra.

3 Gordon, v. Harper, 7 T. R., 9, 12; Swift v. Moseley, 10 Vt., 203; Thorp v. Burling, 11 John. R., 285; Bush v. Lyon, 9 Cowen, 52.

4 Hasbrook v. Lounsbury, 27 N. Y., 598.

Gordon v. Harper, supra; Farrant v. Thompson, 5 Barn. & Ald.,

Howard v. Farr, 18 N. H., 457.

826;

6 Swift v. Moseley, 10 Vt., 208; Morse v. Crawford, 18 Vt., 499; Camp v.

Mitchell, 34 Miss., 449.

7 Ely v. Ehle, 3 N. Y., 506.

* Williams v. East India Co., 3 East. R., 192; Doorman v. Jenkins, 2 Adolph. and Ellis R., 80; Hayes v. Kedzie, 11 Hun., 577.

the defendant's negligence, or could not be obtained on request. By showing a demand and refusal to deliver the package after a reasonable time, he will be entitled to recover, unless the defendant account for the loss by showing the package lost without fault on his part, that is, without gross negligence. The evidence that the defendant refused to give any information in respect to the package, would change the burden of proof from the plaintiff to the defendant; or, submitted to the jury without explanation, it would be sufficient to render the mandatary liable.

§ 107. When the mandatary has converted the property to his own use, and an action in the nature of trover is brought against him for the conversion, the burden of proof lies on the plaintiff to show that the defendant has assumed to himself the property and right of disposing of the plaintiff's goods.2 The action assumes that the defendant came lawfully into possession of the goods, and it is sustained by showing a breach of the trust, or an abuse of such lawful possession. This familiar principle is applicable to choses in action as well as to chattels. If the mandatary, intrusted with the goods of another, puts them into the hands of a third person, contrary to orders, it is a conversion. So, if he be intrusted with a promissory note to be used in a specified manner, and he dispose of it differently, it is a misuse or disposition of the note contrary to orders, which will sustain the action. Even where the plaintiff has repossessed himself of the thing bailed, the action may be sustained for the breach of trust, which is a conversion; and the amount of the recovery will depend upon the nature of the case. If it be a negotiable note, which has been transferred for value to a bona fide holder, and afterwards paid by the plaintiff, the recovery will be for the face of the note; and the plaintiff may recover the face of the note without proving payment."

§ 108. In order to maintain an action in the nature of trover against a mandatary, who always comes legally into possession of the property, it is necessary to show a demand and refusal, or an actual conversion. The rule was held differently where the possession itself was tortious,

1 Beardslee v. Richardson, 11 Wend., 25; Coykendall v. Eaton, 55 Barb., 188; Newstadt v. Adams, 5 Duer, 47; Boies v. Hartford, &c., R. R. Co., 37 Ct., 272. 2 Baldwin v. Cole, 6 Mod., 212; McCombie v. Davies, 6 East., 540.

3

Syed v. Hay, 4 Term Rep., 260; Kowing v. Manly, 49 N. Y.,

193.

4 Murray v. Burling, 10 John. R., 172; Decker v. Mathews, 5 Sand., 439; 12 N. Y., 239.

62 Esp. N. P., 190, 191; Ingalls v. Lord, 1 Cowen R., 240; ante § 61; Brewster v. Silliman, 38 N. Y., 423, 428.

62 Esp. N. P., 190, 191 ; Ingalls v. Lord, 1 Cowen R., 240; Decker v. Mathews,

supra.

which is an actual conversion. The general principle is that a demand and refusal, as against one who has chattels in trust for another, are prima facie evidence of a conversion; but this evidence may be overcome by counter testimony, going to negative the presumption of a conversion arising from such refusal on demand. The effect of the demand will depend upon the present relation of the parties at the time it is made; if the defendant refuse to deliver the goods according to contract, he having the possession, he becomes liable for them.3

6

5

§ 109. An action in the nature of trover against a bailee, does not lie for negligence, nor for goods lost, or taken from him; it proceeds upon the assumption that he has usurped the right of property over them, by converting them to his own use. Coming lawfully into the possession, it must be shown that he has sold or otherwise converted the goods. Where, however, the title is in the plaintiff, and it is shown that the property was wrongfully taken from his possession, the burden will be cast upon the defendant of shewing that he came to the possession of the property, by purchase or bailment, and without any fault on his part. This again, it seems, will transfer the burden of proof to the plaintiff, to show a demand of the property, and a refusal, or some other act of conversion.8

§ 110. The action, in the nature of assumpsit for money had and received, may be brought against a bailee or trustee who has converted the property into money; but in order to maintain this action against two trustees jointly for money had and received to the use of the cestui que trust, the plaintiff must prove a joint promise, either express or implied. The fact that each of the defendants, who are trustees under an assignment for the benefit of creditors, has admitted the receipt of funds

1 Bates v. Conkling, 10 Wend., 389; Brown v. Cook, 9 John. R., 361.

2 Packard v. Getman, 4 Wend., 613.

31 Taunt., 391; 4 Esp., 157. The use of the property in a different manner from that agreed upon with the owner, is a conversion of it; it is an unauthorized appropriation of it; Beach v. Raritan & Del. Bay R. R. Co., 37 N. Y., 457 ; a refusal to return it to the owner on demand: Anderson v. Nicholas, 28 N. Y., 600. An unauthorized sale of the property by the pledgee is a conversion. Lawrence v. Maxwell, 53 N. Y., 19; unless waived or not objected to: Bryan v. Baldwin, 52 N. Y., 232. A refusal to deliver on demand is evidence of a conver. sion at the time of the refusal. Roberts v. Berdell, 52 N. Y., 644.

Salk., 655; 5 Burr., 2825.

Storm v. Livingston, 6 John. R., 44.

• Barrett v. Warreu, 3 Hill, 348; Acker v. Campbell, 23 Wend., 372; M'Carty v. Vickery, 12 John. R., 348.

3 Hill, 351.

* 10 Wend., 389.

equal to the demand of the plaintiff, one of the creditors, and expressed his willingness to distribute the same according to the terms of the trust, does not raise an implied promise, such as will support an action at law against the defendants jointly, as for money had and received. Each trustee is answerable for his own acts only; this is the general rule; and the law will not imply a joint promise on the separate statements or admissions of each.1

Property delivered and received as money, will support the action precisely the same as if money itself had been delivered and received.2 And it is not necessary in all cases, to give positive evidence that the defendant has received money belonging to the plaintiff; but where, from the facts proved, it may fairly be presumed the defendant has received the plaintiff's money, the plaintiff may recover in this action for money had and received to his use. In general, this action cannot be supported unless the defendant has in fact received money to the plaintiff's use."

§ 111. A recovery in trover for the value of goods, and a satisfaction of the judgment, vests the property in the defendant; because this gives to the plaintiff, at his suit, an equivalent for his property in damages. There is no dissent from this rule, as a single affirmative proposition. In some of our States, the recovery of the judgment alone is held to work a transfer of the property; on the ground that by bringing this action the plaintiff elects to convert his demand into a judgment for the value of the property, which becomes a chose in action transferable like any other security."

In many cases the plaintiff has an election to bring assumpsit, trespass, replevin, or trover; and as a rule he is held to the logical consequences of his election; he recovers subject to the defences and principles applicable to that form of action which he adopts. On the same

1 De Forest v. Jewett, 2 Hall R., 130. 2 Ainslee v. Wilson, 7 Cowen R., 662. 3 Tuttle v. Mayo, 7 John. R., 132.

Beardsley v. Root, 11 John. R., 465.

5 Osterhout v. Roberts, 8 Cowen, 43; Curtis v. Groat, 6 John. R., 168; Thurst v. West, 31 N. Y., 210, 215; Sharp v. Gray, 5 B. Monroe, 4; Jones v. McNeil, 2 Bailey S. C., 466; Lovejoy v. Murray, 3 Wallace, 1-19; 2 Kent's Com., 357, 338.

6 Floyd v. Browne, 1 Rawle., 121; Fox v. The Northern Liberties, 3 Watts & Serg., 103; Carlisle v. Burley, 3 Maine, 250; Loomis v. Greene, 7 Maine, 386; Murrell v. Johnson, 1 Henning & Munford, 450; Hunt v. Bates, 7 R. I., 217; Buckland v. Johnson, 15 Com. Bench, 145, 157.

7 Hunter v. Prinsep, 10 East., 378; Frothingham v. Morse, 45 N. H., Baker v. Cory, 15 Ohio, 9; Coffey v. National Bank of Mo., 46 Mo., 140.

545;

ground, the plaintiff, by adopting the action of trover, is said to elect to recover damages in lieu of his property-an inference which would be of controlling weight in favor of anybody but a wrong-doer.

The title is not changed by the act of conversion, nor by the exercise of acts of ownership over the property. The owner of timber may reclaim it when made into shingles,' or converted into coal, notwithstanding it has lost its primitive form. So long as he can prove its identity, he may follow and retake it in whatever new shape it may have been wrongfully made to assume. By bringing his action of trover, the owner makes his election, to demand the value of the property. But proof that the defendant refused to deliver it on demand, shows a conversion at the time when the demand is made; the refusal being itself a conversion, it is doubtful whether the defendant would be permitted to show a prior act of conversion with a view to a reduction of damages; since that would be permitting him to found a defence upon his own wrongful act.

§ 112. As a general rule, the measure of damages in the action of trover is the value of the property at the time of the conversion, with interest from that date; a rule which is applied in all cases where the property has a fixed value. Interest on the value from the date of the conversion, is a necessary part of a complete indemnity.

The law cannot favor a wrong-doer; hence where the plaintiff is deprived of some special use of the property, or where the property naturally fluctuates in value like stocks, the owner has been allowed to recover the highest value of the things wrongfully converted, down to the day of the trial; certainly he is not limited to the value of the property on the day of the conversion; since that rule would give the wrongdoer the opportunity to take another man's property and hold it with a

10.

1 Betts and Church v. Lee, 5 John. R., 349; 5 Hen. VII., 15; 12 Hen. VIII.,

2 Curtis v. Groat, 7 John. R., 168; Babcock v. Gill, 10 John. R., 237.

3 Dillingback v. Jerome, 7 Cowen R., 294; Kennedy v. Strong, 14 John. R., 128; Baker v. Wheeler, 8 Wend. R., 505; Suydam v. Jenkins, 3 Sand. Superior C. R., 628, and the cases there cited.

Andrews v. Durant, 18 N. Y., 496; Beecher v. Denniston, 13 Gray (Mass.), 354; Dixon v. Caldwell, 15 Ohio St., 412; Kennedy v. Strong, 14 John. R., 128; Clark v. Pinney, 7 Cowen R., 681; Neiler v. Kelly, 69 Penn. St., 403.

McCormick v. Penn. Central R. R. Co., 49 N. Y., 303, 315; Hurd v. Hubbell, 26 Conn., 389, 483; Yates v. Mullen, 24 Ind., 277; Negus v. Simpson, 99 Mass., 388.

6 Romaine v. Van Allen, 26 N. Y., 309; Burt v. Dutcher, 34 N. Y., 493; Scott ▼. Rogers, 31 N. Y., 676; Musgrove v. Beckendorff, 53 Penn. St., 310; Ellis v. Wire, 33 Ind., 127; Lobdell v. Stowell, 51 N. Y., 70; Markham v. Jaudon, 41 N. Y., 235; Groot v. Gile, 51 N. Y., 431.