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

~ aA6hAANAS VI 1OuhoNAf ho9 0NNl
since been retained by plaintiffs
Much is claimed in the argument
from the fact that when the ware
house receipt was delivered to plain
tifs' attorney, it was not Endorsed by
defendant. After a careful eXamina.
tiOn of the language of the receipt we
are of the opinion that this was un-
necessary. If an Endorsement were
necessary, the proper persons to
make 1t would be the plaintiffs, Hung
Sun & Co. We see no more reason
for such a requirement from defen-
dant than from any drayman or
teamster. hauling and storing goods
in a warehouse for the owner. Had
the plaintiffs attempted or desired to
care for the goods, and the indorse-
ment of defendant required by any
one interested, this question would
then be material.
1t is not necessary to a conversion
that there should be a manual TAX
ing of the thing in question. Cooley
on Torts e Ed, 524. Neither is
every manual taking of the personal
property of another a conversion.
ga conversion of property is an act
of malfeasance, not of mere nonfea-
sance; a positive wrong, and not the
mere omission of what was right.
The n in which possession of
the property was acquired by the de-
PENDANT in an action of trover, may
be material with regard to the evil
dence of a conversion = = -"
Schroeppel V. Corning, 5 DEMO, 236,
240. Lord Mansfield defines the &C
ton of trover to be a remedy ito re-
cover the value of personal chattels
wrongfully converted by another to
his W use" While in s Words &
Phrases, I'LL, citing Warning v. Pa.
R. R. Co., rs Pa, 491, 1876, this defni-
ton appears: ".The taking may have
been lawful, hence the gist of the ac-
ton lies in the wrongful conversion.
Where n has the lawful possession
of the goods of another, and has not
converted them, this action will not
lie until there has been a refusal to
deliver them on demand made See
also Boulder V. Couge, 4 PennewilT's
Del, As; "a Att, 500. "a conversion
is the gist of the action, and without
conversion neither possession of the
property, negligence nor misfortune
will enable the action to be main
8 Words & Phrases, 7112.
n order to maintain an action for
conversion there must have been, on
part of the defendant, some I'M
awful assumption of dominion over
he personal property involved, in
iefiance or exclusion of the plaintiffs
or else a Withholding of the
possession from the plaintiffs under
claim or right or title inconsistent
With that of the plaintiffs. Thweat
:. Stamps, CT Ala, SO, SO; France V.
iibson, 1O1 S. w. (Tex.), $50; Swank
:. Elwert, 105 &C. (Ore.), 9O1. In
Shea V. Inhabitants of Milford, las
lass, 525, 527, where the plaintiff
vas requested and refsued to remove
is property from the defendants
and, and such removal was made by
he latter, the evidence .negatived a
Inversion by the defendants, show
1g that they claimed no title and
ssumed no dominion, aud did moth
1g in derogation of plaintiffs title
hereto; that all that was done was
4 assertion of their right to the land,
in full recognition of plaintiffs
light of property in the chattels. If
laintiff had the right to occupy the
claimed then the defendants
was wrongful, and they were liza
lie for damages for breach of con-
act or for trespass, but not for the
alue of the property. Citing Farms
'orth V. Lowery, 1874 Mass, SIP;
Guides V. Willoughby, 8 NJ. & W.,
~; Head v. Carey, II G. B., or.
ferring also to Browder V. Phinney,
Wash, 70, IA, Is, a controversy I
'garding a lease, where the defndant
tempted to remove the merchan- +
Sc of tn plaintiff from his building {
another place of business of the j
aintiff and the latter's partner, t
hich he refused to permit and sub /
quently defendant caused the t
'ods to be stored in plaintiffs name d
a warehouse, it was held there '
as no conversion, citing Sparks v. v
lrdy, IL Mo-, 142, in which the +
remarks: "The bare remov- t
g of ones chattel from one SPOT ]
another without denying his own
ship, but on the contrary acknow It
1ging it,cannot be conversion. 1t Is
neither a deprivation of the own
S right, MOI is it use, enjoyment. \
ange or destruction of the proper- ~
y. In Adams v. Weir & Flag, 80
w. (TeX.), $50, where the tenant g
fused to remove the fixtures from s
building formerly occupied by him. S
d the same were removed and d
bred by the defendants, the court a
Id that the facts did not show a c.
INVERSION, there being no intention v
the part of defendants to take S
session of the property. 1t is Il
i'd in Fouldes V. Willoughby, SUI C
a, ut has never yet been held that C
e single act of removal of a chattel,
dependent of any claim over it, Ii
her in favor of the party himself n
anyone else, amounts to a CONVEX a
IN of the chattel." See also s d
Ords & Phrases, 7112. s.
the case under consideration the fl
1