#### Dunham vs. Converse, Administrator, etc.

1. CONVERSION on Chattels. *When demand necessary.*

*■*2. Instuctions — Error. *When refusal of correct instruction not error. •*

1. Where personal property wrongfully taken from the owner, has been delivered by the wrongdoer to one who is familiar with the facts and bound to know that the taking is unlawful, *it seems*that an action for the conversion will lie against the latter without any previous *demand.*

*3072. The jury having been instructed, in effect, that they could not find a verdict against defendant unless they found “that he unlawfully took and carried away and converted to his own use ” the property in question, it was not error to refuse a further instruction that a *demand,*must he shown, to sustain the action.

EEEOE to tbe Circuit Court for *Dodge*County.

The action below was brought by *Converse,*as administrator of the estate of JohnP. Converse, deceased, to recover damages for the unlawful taking and conversion of certain chattels, including five hundred bushels of wheat, two hundred bushels of oats, etc., etc., alleged to belong to said estate, and to have been unlawfully taken by *Dunham*from the possession of said administrator. Answer, a general denial. Plaintiff’s evidence tended to prove that in January or February, 1859, as administrator of the estate of John P. Converse (who died in 1856), and with the consent of the widow of said deceased, he leased to one Ketchum for a year a farm of some eighty acres which had belonged to the deceased and was occupied by him at his death, and upon which the widow and children continued to reside; that Ketchum, by the terms of the lease was to have one half of the products of the farm for the term; that in July, 1859, said widow intermarried with the said *Dun-ham,*and thereafter lived with him upon his farm not far distant from the land above described; that at or about the time of such marriage, a portion of the chattels in controversy were removed by *Dunham,*to his farm; that in September following, Ketchum threshed the grain raised upon said farm during that season, and delivered it to *Dunham,*by whom it was removed to his own place; and that upon the settlement of plaintiff’s account as administrator, in 1860, all the property here in controversy was charged to him. The nature of the evidence on the part of the defense will sufficiently appear from the charge of the circuit court, which, so far as it is important here, was as follows : “ Defendant claims to have proved that he, in fact, never took the property, but that it was taken by and under the direction *308of bis wife, wbo was tbe widow of John P. Converse, deceased; tbat tbe property, or some part of it at least, was by ber direction brought upon bis premises, and by bim sold and disposed of for tbe benefit of bis wife; and tbat sucb of it as was not sold and disposed of was in ber possession at tbe commencement of tbis action, and not in bis. * * It is for you to determine, from tbe evidence in tbis case, applying it to tbe law as I shall give it to you, whether tbe theory of tbe plaintiff or defendant has been established.”

At plaintiff’s request tbe court instructed tbe jury, 1. Tbat if plaintiff, as administrator, etc., leased tbe premises, with tbe consent of tbe widow of Jobn P. Converse, be would be entitled to tbe proper share of tbe estate in tbe crops raised by tbe tenant ; and if *Dunham*unlawfully took and carried away, and converted to bis own use, said share, plaintiff, as sucb administrator, would be entitled to recover of said defendant. 2. Tbat if plaintiff, as sucb administrator, in bis settlement with tbe county court in 1860, was charged with tbe property in controversy, sucb settlement was conclusive as to tbe right of tbe administrator to tbe possession of said property, as against tbe widow of tbe deceased and tbe heirs of said estate, and all persons claiming under them or by their authority. Tbe defendant asked, but tbe court refused, instructions to tbe effect, 1. Tbat if Ketehum was in lawful possesion of tbe property, and delivered it to Mrs. Dunham, and there were no wrongful intent on defendant’s part, and what be did was at tbe request of bis wife, plaintiff must prove a *demand*of defendant before be could recover in tbis action. 2. Tbat Ketehum, as lessee, was in tbe lawful possession of tbe products of tbe farm; and if be and tbe widow brought tbe property in dispute, and put it in defendant’s possession, and defendant gratuitously took it at tbe request of tbe widow, with no wrongful intent, tbe plaintiff must prove a *demand*before be could recover. 3. Tbat tbe mere fact tbat tbe title of tbe property, or a portion of it, was in tbe administrator, would *309not support this action, but it must also appear tbat defendant either took it as a *trespasser,*or held it against the demand of the administrator, made before the action was brought. 4. That plaintiff could not recover *as administrator*for the wheat raised upon a certain specified ten acres of said land, but, if entitled to it at all, must recover for it “in an individual action.” The ground upon which this fourth instruction was asked will appear from the opinion.

Verdict for the plaintiff; new trial denied; and judgment on the verdict; and *Dunham*took out his writ of error. *

*Gerrit T Thorn,*for plaintiff in error,

argued that when a party comes into the possession of personal property lawfully, as a *Iona fide*purchaser or as a bailee, the claimant of the property cannot maintain an action for conversion until he has made a demand. So where a second person receives property innocently from a wrong-doer. 1 Chit. Gen. Pr., 565 ; *Barrett v. v. Warren,*8 Hill, 348 ; *Millspaugh v. Mitchell,*8 Barb., 333 ; *Monnotv. Ibert,*33 id., 24; *Powersv. Bassford,*19 How., 309 ; *Livingston v. Stoessell,*3 Bosw., 19. He farther contended that it appeared from plaintiff’s own testimony that the ten acres referred to in the fourth instruction asked by the defendant, were the property of the plaintiff, and therefore that instruction should have been given.

*M JEZlwell,*for defendant in error.

DixoN, C. J.

The first, second and third requests to charge made by the defendant below, now the plaintiff in error, related to the necessity of a demand of the property and proving it, before the action could be maintained by the plaintiff. Begard being had to the testimony given by the defendant himself, those requests might, possibly, with propriety have been granted. Yet this was very doubtful upon the whole testimony in the *310case. It was very doubtful upon the whole testimony, and even upon the testimony of the defendant himself. It was not clear that the defendant was in the situation of a person who had received the property innocently and in good faith from the wrong-doer, so as to have made a demand from him necessary before action brought. On the contrary, if we say nothing about his agency and actual interference in the taking and removal of the property, which the testimony of other witnesses tended very strongly to establish, it was still evident that he knew all about the title and interest of the plaintiff, and by what right his wife and Ketchum claimed to remove and control the property. He was familiar with the facts, and did not pretend otherwise at the trial. It would seem, therefore, that he was bound to know that his wife was a wrong-doer in taking the property — that she had no right to remove it, nor Ketchum to deliver it to her. If this was so, then it was very questionable whether any demand was necessary. If it was, it must have been because a demand is required of a person who receives goods from a trespasser knowing him to be such and receives them, too, from him while engaged in the very act of trespass known to have been committed. It seems almost undeniable that no demand is necessary in such a case, whatever may be the relations between the person receiving the property and the person taking it.

But, however the law may be upon this point, we are of opinion that there was no error in refusing the requests, because the same had already been in substance given in the general charge, and the court was not required to repeat them. The ground of refusal does not appear, and, for aught we know, the reason assigned by the court may have been, that the jury had been previously so instructed. The requests to so charge came after the written charge of the court, and after the instructions given at the instance of the plaintiff, and were refused last in order upon the trial. The written charge fully and fairly explained the nature and theory of the defense claimed to have been *311proved by tbe defendant, and, taken in connection witb tbe instructions given at tbe request of tbe plaintiff, and wbicb immediately followed, must bave been understood by tbe jury as requiring a verdict for tbe defendant, provided they found bis theory of tbe case, or tbe facts as claimed and insisted upon by bim, to bave been true. Tbe court said: “ It is for you to determine, from tbe evidence in tbis case, applying it to tbe law as I shall give it to you, whether tbe theory of tbe plaintiff or defendant has been established.”

And under tbe first instruction given at tbe request of tbe plaintiff, and which was tbe only one bearing upon tbe point, tbe jury were required to find that 11 tbe defendant unlawfully took and carried away and converted to bis own use ” tbe prop-in dispute, in order to return a verdict for tbe plaintiff. Tbe jury must therefore bave found that tbe defendant did in fact take, cany away and convert tbe property to bis own use; and as there can be no question about tbe sufficiency of testimony in that particular for tbe consideration of tbe jury, it follows, if there was error in refusing tbe defendant’s requests to charge in respect to tbe necessity of a demand, that it has now become wholly immaterial. If tbe defendant actually took, carried away and converted tbe property himself, as tbe jury bave found upon a sufficiency of evidence, then no demand was necessary, and no error of tbe court in relation thereto, or in refusing to charge as requested, will be allowed to disturb tbe verdict.

As to tbe fourth request to charge, it is enough to say that it assumed as a fact a matter wbicb should bave been submitted for tbe determination of tbe jury. It assumed as a fact that tbe ten acres upon wbicb tbe wheat spoken of was raised, was land owned and occupied by tbe plaintiff individually. Tbe testimony, as reported to tbis court, is by no means clear, and tbe bill of exceptions does not purport to contain all of it. All that appears here respecting tbe ten acres of wheat, or tbe ownership of tbe land, are a few words *312in tbe testimony-of tbe plaintiff in reply to or explanation of some testimony given by tbe defendant, wbicb last does not appear. Tbe plaintiff spoke of tbe land as bis own, and at tbe same time said tbe wheat that grew tbereon was part of tbe same wheat wbicb be claimed as administrator in tbe suit. Tbe inference must be, when be said tbe land was bis, that be claimed it in bis representative capacity. At all events, it was for tbe jury to say wbat tbe fact was, and not for tbe court to assume it by a positive instruction that tbe plaintiff could not recover for that wheat.

*By the Court.*— Judgment affirmed.