* * * * * "`The Court: You are telling me now that you and your wife own it, "referring, I assume, to the Stradivarius," is that right? "`The Witness: Yes, sir. "`The Court: All right.'" (SM 336) 23. A few weeks later Mortimer received a letter from Rabinof dated May 8, 1964. The letter made no explicit reference to the Lord Amherst nor did it provide the promised explanation why it would be better for Rabinof to keep the violin.[6] The letter concluded with the following words: "We are planning to help you all we can. Please continue your faith in us.[7]" (302-303; Ex. 34) The letter made no claim of ownership of the prized violin.
24. Subsequently, Mortimer had two telephone conversations with Rabinof, one in the middle of April 1964 and the other about May 26, 1964. In the April conversation Mortimer told Rabinof that he requested him to return his violin; Rabinof said that he needed the violin to continue to play on his tour. Rabinof also told Mortimer, "I know you have had heavy expenses with your trial and *838 you may want to sell it. I would like to have the opportunity to purchase the violin" whereupon Mortimer said, "I wish you to return my violin. We have to reorganize my entire life after this adverse decision and I want to get all my assets together to see what I have to do." Rabinof said he needed to play the violin on the tour and that it would be better for him to keep it at this time, but Mortimer protested, and Rabinof said, "You will hear from me." (300-302; see also Ex. 34, a note dated May 8, 1964)
25. Mortimer placed a second telephone call to Benno Rabinof on or about May 26, 1964. He questioned Rabinof why he had retained counsel with respect to the Lord Amherst since Rabinof knew perfectly well that he, Mortimer, owned the violin. Rabinof did not contradict this statement nor did Rabinof assert that he owned the violin. He merely told Mortimer that the lawyer who was advising him was his brother-in-law, one Tepper. Rabinof repeated that it was very important for him to be able to play the violin; that it would be better if the Rabinofs kept it at that time; and that the Mortimers would be hearing from him. Prior to the commencement of this action on January 2, 1968, the Mortimers never heard from Benno Rabinof again (303-307).
26. Rabinof's testimony places a so-called "demand" in the fall of 1963, "probably October" (120-122). According to Rabinof, Mortimer said, "Benno, I want the violin back," whereupon Rabinof said, "I thought you gave it to me as a gift." (122) The doctor, said Rabinof, hung up. I discredit this testimony, but, even if accepted, it does not support a hostile possession. Rabinof at no time refused to return the violin. At no time did he say, "It is mine." The fact that Rabinof instructed