Conversion. Waiver. In an action for the alleged conversion of a horse belonging to the plaintiff, which he entrusted to the defendant to sell for a certain price, the defendant agreeing to make no charge for board in consideration of the plaintiff's agreement to let him use the horse in his business, there was evidence that the plaintiff had made many demands for the return of the horse without obtaining it and that at all times he had insisted on such return, and the presiding judge refused to rule at the request of the defendant that there had been a waiver by the plaintiff of his demand for the return of the horse. Held, that the refusal of the judge was right.
CROSBY, J.
This is an action for conversion. There was evidence to show that the plaintiff purchased a horse at a sheriff's sale on May 23, 1911, and that on the same day the horse was brought by the plaintiff to the premises of his brother-in-law, the defendant Preskenis, who agreed that he might be kept there; that afterwards on the same day the defendant Reid stated to the plaintiff that the horse was worth at least $350, that he thought he could effect a sale at that price, and that if the plaintiff would consent to his taking the horse to his (Reid's) stable and using him in his business, he would effect a sale and make no charge for board; and that the plaintiff assented to this arrangment. There was also evidence that Preskenis was in the employ of Reid and that both defendants acted together in the control of the horse.
The plaintiff testified that he made repeated demands upon each of the defendants between May 23, 1911, and February 20, 1912, for the return of the horse, but did not succeed in obtaining possession of his property. That such demands were so made does not seem to have been disputed by the defendants, each of whom testified that the horse was sold by Reid for $125 with the knowledge and assent of the plaintiff.
At the close of the evidence the defendants requested the judge to rule that there had been a waiver by the plaintiff of the demand for the return of the horse. The judge refused so to rule, and the defendants excepted.
This ruling properly could not have been given upon the evidence. Whether there was a waiver by the plaintiff of previous demands was a question for the jury, and as no exception was taken to the charge, it is to be assumed that the question was submitted with appropriate instructions. There was ample evidence that the plaintiff made many demands for the return of his property without obtaining it, and that he at all times insisted upon such return and never waived his rights under the demands so made.
Exceptions overruled.