Conversion. Evidence, Presumptions and burden of proof. Practice, Civil, Findings of judge without jury, Exceptions.
Where the plaintiff in an action for the alleged conversion of an article of personal property relies upon a demand and refusal as independent and basic evidence of a conversion, it must appear that at the time of the demand and refusal the defendant had the control of the article so as to be able to comply with the demand, and the burden of proving such facts is upon the plaintiff.
Where a judge, who without a jury heard an action for the alleged conversion of an article of personal property, ruled that the only evidence of conversion in the case was a refusal of the defendant to deliver to the plaintiff upon his demand the article alleged to have been converted, and erroneously refused to rule that the burden was on the plaintiff to show that at the time of the demand the defendant had it in his power to return the article to the plaintiff, and then found for the plaintiff, exceptions alleged by the defendant should be sustained, even if there was evidence warranting a finding that the defendant could have complied with the plaintiff's demand.
HAMMOND, J.
When the plaintiff relies upon demand and refusal as independent and basic evidence of conversion, it must appear that at the time of the demand and refusal the defendant had the control of the article so as to be able to comply with the demand; and the burden of proving all this is upon the plaintiff. Lord Ellenborough in Smith v. Young, 1 Camp. 439, 441. 2 Greenl. on Ev. 644, and cases cited. See also Johnson v. Couillard, 4 Allen, 446; Gilmore v. Newton, 9 Allen, 171. The fifth instruction should have been given.
We are therefore compelled to sustain the exceptions, even if there was evidence which would have warranted a finding that the plaintiff had sustained the burden. The general finding for the plaintiff so far as dependent upon this branch of the case may have turned upon the erroneous theory apparently adopted at the trial as to where the burden of proof lay.
Exceptions sustained.