#### Lucas, Respondent, vs. Sheridan and another, Appellants.

*March 17*

April *5, 1905.*

*Conversion of personal property: Sheriff: Offer to return: Injury to goods: Instructions to jury.*

1. In an action against a sheriff and undersheriff for the conversion of personal property contained in a houseboat levied upon by the officers, it was not error to instruct the jury that if the *568person placed in charge of the boat by the defendants forbade plaintiff to take the property, knowing or having been informed that plaintiff was the owner thereof, this was a denial by defendants of plaintiff’s right and amounted to a conversion of the property.

2. The evidence in such action — tending to show, among other things, that after the levy upon the houseboat the defendants removed plaintiff’s goods therefrom and put them upon the beach, but forbade the plaintiff to take them away; that while lying upon the beach the goods were rained upon and injured; and that two or three days later defendants offered to let plaintiff have the goods, but he then refused to take them because they had been spoiled — is *held*to sustain a verdict for the plaintiff.

3. It was not error to instruct the jury that if, after removal from the boat, the goods, had been materially injured by rain or otherwise, or had been in part carried away by persons unknown, plaintiff was not bound to accept defendants’ offer of return, but was entitled to recover the fair value of the property.

Appeal from a judgment of the circuit court for Fond du Lac county: Michael Kirwah, Circuit Judge.

*Affirmed.*

This is an action for the wrongful and unlawful taking from the possession of the plaintiff, October 8, 1901, and carrying away and converting to their own use, of certain personal property described, of the alleged value of $550, for which amount the plaintiff claims damages and prays judgment. It appears from the record that on or about June 28, 1901, the plaintiff purchased from one Ed. Wheeler a certain houseboat, and upon that day obtained from him a bill of sale of the same. The complaint alleges that all of the personal property mentioned was at the time of such conversion within said houseboat and belonged to the plaintiff.

The answer alleges, in effect, that the defendants, as such sheriff and undersheriff, on October 8, 1901, by virtue of an execution against the goods and chattels of said Ed. Wheeler, issued by a justice of the peace October 4, 1901, upon a judgment entered before him in favor of one S. S. Willis and against Ed. Wheeler for $125.80 damages and costs, *569seized and took possession of said houseboat as the property of said Ed. Wheeler; that at the time of such seizure the personal property mentioned was in said houseboat, of which the plaintiff claimed to he the owner; that at the time of such seizure the defendants notified the plaintiff that they-had taken the houseboat by virtue of such execution and to remove therefrom any articles of personal property belonging to him, which the plaintiff then and there absolutely refused to do; that the defendants then and there caused all of such articles to be removed from the houseboat a short distance, to the bank of the river, and immediately thereafter notified the plaintiff of such removal and the place where such articles were located; and the defendants specifically deny that they carried away or converted to their own use any of said articles of personal property.

The issues so joined were tried, and at .the close of the trial the jxuy returned a verdict against the defendants and in favor of the plaintiff, and assessed his damages at $487. Erom the judgment entered thereon for that amount of damages and $63.17 costs and disbursements the defendants appeal.

Eor the appellants there was a brief by Reilly, *Fellenz &*Reilly, attorneys, and *Maurice*McKenna> of counsel, and oral argument by *M. K. Reilly.*

*T. L.*Doyle, for the respondent.

Cassoday, C. J.

The houseboat mentioned is not here in controversy. Counsel for the defendants concede that after they seized the houseboat as the property of WTieeler, as mentioned, it was replevied by the plaintiff, and that eleven days after such seizure it was found to be the property of the plaintiff in this action, and so was turned over to him by the defendants. The controversy here relates entirely to the articles of personal property belonging to the plaintiff and inside of the houseboat at the time of such seizure.

*5701. Exception is taken because, in charging the jury, the-court, among other things, said:

> “But if the man in charge of the boat knew that the plaintiff was the owner, or if at that time he was so informed by the plaintiff, and if the custodian then forbade the plaintiff to take the property in suit, such denial of the plaintiff’s right was a denial by the defendants, and amounted to an assertion on their part of the control or dominion over this-property, and was a conversion of it, in the law; and, if you find that such was the fact, then the plaintiff is entitled to-recover of the defendants the full value of his property which was removed by them from the houseboat, unless you are satisfied that at a later date they offered to return to him the property, or offered to permit him to take it, and that it was-then in substantially as good condition as it was in just before it was removed from the houseboat.”

“It may be stated as a general rule that every act of control or dominion over personal property without the owner’s-authority, and in disregard and violation of his rights, is, in contemplation of law, a conversion.” 28 Am. & Eng. Ency. of Law (2d ed.) 679. The decisions of this court are in harmony with such statement. *Dexter v. Cole,*6 Wis. 319 ; *Thomas v. Steele,*22 Wis. 207; *Dunham v. Converse,*28 Wis. *306 ,Tobin v. Deal,*60 Wis. 87, 18 N. W. 634; *Brickley v. Walker,*68 Wis. 563, 32 N. W. 773; *Boldewahn v. Schmidt,*89 Wis. 444, 62 N. W. 177; *LaChapelle v. W. & B. S. Co.*95 Wis. 518, 70 N. W. 589; *Cernahan v. Chrisler,*107 Wis. 645, 647, 648, 83 N. W. 778. As stated in this last case by way of quotation from Cooley on Torts: “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion.” As said in that case by Mr. Justice BaRdeeh, the test is whether the wrongdoer has exercised a dominion over the property in exclusion or in defiance of the plaintiffls rights. We must hold that there was no error in giving the instruction quoted.

2. We cannot say that the verdict of the jury is not sus*571tained by tbe evidence. *Adams v. C. & N. W. R. Co.*89 Wis. 645, 62 N. W. 525 ; *Renne v. U. S. L. Co.*107 Wis. 305, 320, 83 N. W. 473, and cases there cited; *Collins v.*Janesville, 117 Wis. 415, 421, 94 N. W. 309. Tbe evidence on tbe part of tbe plaintiff tends to prove tbat just prior to tbe levy tbe plaintiff informed tbe defendants tbat the houseboat and all tbe articles of personal property contained therein were bis property in bis possession, and tbat they must keep off from it and let it alone; tbat soon after the levy upon tbe houseboat, and on tbe same day, tbe plaintiff went there, and found one of tbe defendants and another gentleman carrying bis goods off from tbe boat and throwing them on tbe beach; tbat tbe plaintiff walked onto tbe boat and was. ordered off by them, and was told to get off and stay off; tbat be then went away, and returned about 6 o’clock in tbe evening, of tbe same day with a couple of boys to take bis goods and put them under cover; tbat be told tbe gentleman there in possession of tbe goods tbat they were bis property, and tbat tbe gentleman in charge then said to him: “These goods are in my possession, and you get away from here and leave them alone;” tbat it was cloudy and misty on tbat day and rained tbat night. It is undisputed -that two or three days after-wards one of tbe defendants went to tbe plaintiff and said to him tbat there bad been a misunderstanding about that property, and tbat tbe plaintiff could then have it, if be wanted it, and .to go and get it; tbat tlie plaintiff then informed him tbat it bad been raining on tbe property for two or three days and much of it bad been spoiled.

3. Error is assigned because tbe court charged tbe jury upon this last phase of tbe evidence to tbe effect tbat if tbe jury were satisfied by tbe evidence tbat the property bad in tbe meantime been materially injured by rain or otherwise, or tbat it bad been in part earned away by persons unknown, then tbe plaintiff was not bound to accept such offer of return, but tbat in such case be was entitled to recover tbe fair *572and reasonable value of tbe property in suit, as they should find the same to be from the evidence. We perceive no error in such portion of the charge. In fact the whole charge is quite favorable to the defendants, and the verdict of the jury in favor of the plaintiff is fully justified by the evidence.

4. There is no ground for the contention that the damages are excessive.

*By the Court.*— The judgment of the circuit court is affirmed.