Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-27

PENDANT wrongfully took the property
Of plaintiffs, asserted any title Of
claim thereto, or in any way attempt.
ed to claim or obtain any benefit
therefrom, either for herself or FOL
any one else. 1t would appear from
the whole transaction that the action
of defendant regarding the property
was merely an assertion of her claim
of right to render to the municipal
officers of Portland assistance. by
vacating the building and preparing
it to be taken down in obedience to
their command, the authority for
which defendant appears not to have
questioned Dunn V. Mellon. 147 Pa.
St, IL, 49,; and that this was done
in full recognition of plaintiffs own
ership and right of possession, and
in no way in denial or reputation of
their right or title. There was an
entire lack of hostility on the part OF
defendant to plaintiffs ownership and
right of possession to the goods. Mr..
Justice Field after an elaborate dis
cussion of the question in Spooner V.
Manchester, 1873 Mass, 270, at page
274 says: Whether an act involving
the temporary use, control or deten-
ton Of property implies an assertion
of a right of dominion over it, may
well depend upon the circumstances
of the case and the intention of the
person dealing with the property"
Getting Fouldes V. Willoughby, SUI
pra; Wilson ". Mclaughlin, 1O7
Mass, 5S7; Nelson V. Merriam, 4
Pick, 249; Houghton v. Butler. 4 T.
r., 1854; Head v. Carey, II C. b.,
977.)
In an action of trover 1t is not suf-
fcient that the facts show a mere
trespass without showing a CONVEX
sion. Fl Ency. Pd. & Pr, 1881. There
may be a wrongful taking or carry
ing away of chattels, and still not be
a conversion. A wrongful taking and
carrying away of chattels Is merely
evidence of conversion. The goods
may have been restored to the own
err. Bernstein v. Warland, 33 Misc.
Y, 2SO. There may be an actual,
wrongful exercises of dominion over
chattels without constituting a con-
version, If such dominion is not a
denial Or reputation of the owners
right Of title. % Am. & Eng. Ency.
of Law, 6S1. We conclude that the
facts, as found by the trial court, do
not amount to a conversion of plain
tiff's property, and there was no err
ror in its decision to this effect.
Counsel for plaintiffs in their brief
further contend that if the trial court
was correct in it's conclusion that
there was no conversion of the goods.
the plaintiffs are still entitled to
Judgment for whatever damages the
stated and the proof and find
lngs of the court show they have
sustained by reason of those acts"
This in view of L. o. L., Sec. 1, which
reads as follows: 1.-THE distinction
heretofore existing between forms of
action at law is abolished, and here
after there shall be but one form of
action at law, for the enforcement of
rights or the redress of pri-
1ate wrongs" In actions in the ma
of trespass or case for misfea-
'ance, the plaintiff RECEIVERS only the
damages suffered by reason of the
wrongful acts of the. defendant. In
in the nature of trover the
general rule of damages is the value
If the property at the time of the
conversion, diminished when the
property has been returned to and re-
.eived by the owner, by the value of
he property at the time it was re-
urned. Austin V. Vanderbilt, As Or,
.O6; Cove v. Watson, 81 N. H., 1856;
". Manchester, 1873 Mass,
70, 272.
In the absence from the record of
he testimony, it would be unfruitful
this court to pass upon the uues-
ion of trespass by defendant, for the
eason that the trial court did not
nd or assess any actual damages,
there is no basis upon which a
ldgment for such damages could be
bundled. From the record brought
ere the case appears to have been
led upon the theory that the defen-
ant was liable for the wrongful O n
ersion of the merchandise. But.
1thout the evidence, this court can =
presume error in the failure of =
lie lower court to award plaintiffs ,
ldgment for damages for t~respass. ,
1t follows that the judgment of the :
court must be affirmed, and it =
so ordered. .