McKay v. Pearson , 6 Pa. Super. 529 ( 1898 )

Opinion by

Wickham, J.,

J. S. McKay, the plaintiff, in the fall of 1893, sowed five acres of wheat on a farm that he had leased from William Turner. At the expiration of his term, in the spring of 1894, he removed from the farm. On July 4, 1894, the wheat was ripe and ready for cutting, and the plaintiff, with a man and the necessary machinery, went to the premises to harvest it, as it is now admitted he had a legal right to do.

He was there met by G. W. Pearson, the defendant, who had succeeded him as Turner’s tenant, and who warned him to keep off the land. The next morning the plaintiff again sought to gain an entry, for the same purpose, and was again driven away. At the first visit, the defendant, as he admits, refused to allow the plaintiff to cut the wheat, because, to quote his own language, “ Bill Turner told me when I rented from him that he ” the plaintiff, “had no right to put the wheat in and had no right to the wheat.” Turner denied that he had told the defendant this, but the matter is more interesting than important, as he could not, by anything he might say, destroy the plaintiff’s rights. The plaintiff says,that the defendant gave as a reason for excluding him, that Turner had not reserved the wheat in the lease, and that therefore it belonged to him, the defendant. On the second visit, the defendant told the plaintiff that he had not, the evening before, claimed ownership of the wheat, but he adhered to his positive refusal to not permit the plaintiff to enter and harvest it. The plaintiff then, perforce accepting the situation, took his machinery and man and went away, evidently hopeless, as he had a right to be, of being ever able to get his property.

Looking at all the evidence, it is plain that the defendant, unqualifiedly and absolutely, denied the plaintiff’s title, and did and said that which must have led the latter to conclude, that his wheat was lost to him. He could draw no other infeiv ence from what had happened. If one locks my money in Iris safe or my horse in Ms stable and coolly tells me “ I don’t claim to own your property but I will never let you have it,” he is guilty of a conversion. By what magic could the plaintiff gather Ms crop without going on the land? In the very early case of Baldwin v. Cole, 6 Mod. 212, Lord Holt, speaking of an absolute and unexplained denial, said: “ The very denial of goods to him that hath the right to demand them is an actual conversion, not only evidence ■ of it, for what is a conversion but the assuming upon one’s self the property and right of disr posing of another’s goods.” “ Where the refusal is absolute and unexplained, it is plenary evidence of a conversion: ” 2(? Eng. & Am. Ency. of Law, 781. “Every conversion consists of, first, a dealing with the goods in a manner inconsistent with the right of the person entitled to the immediate possession; second, an intention in so doing to deny his right or assert a dominion which is inconsistent with such right: ” Ibid. 785. One who purchased land whereon was felled timber that had been sold to another, of which sale he, the purchaser of the land had notice, refused to permit the purchaser of the timber to remove it. He was held liable for conversion: Sherman v. Way, 56 Barb. 188.

It is not, and never was, claimed that the defendant was holding the wheat for Turner. He certainly was not keeping it for the plaintiff. The inevitable conclusion therefore is, that he was retaining it solely for some purpose of his own, and whether that purpose was malicious or mercenary is of no importance. The test is, not what the defendant has or has not acquired, but what has been the effect of his act with respect to the plaintiff, and whether jt_amoiLn±s-4cráa'sbsolute denial and repudiation of the plaintiff’s right. ''llad'the YLef^acianiir^nTorrQed. the plaintiff that he intended to exclude him only temporarily, or long enough to get time to investigate his title, there would be reason for saying that the evidence of conversion was doubtful. But, according to the tenor of the defendant’s own testimony, he had already inquired concerning the matter of title, and made up his mind that the plaintiff had no right to the wheat. It is too clear that he thought he had a technical advantage, over the plaintiff, and meant to hold it. There was nothing equivocal or uncertain in his conduct. He intended to prevent the plaintiff from getting the wheat.

Several days later, alarmed perhaps by the plaintiff’s positive assertion of his right to the crop, the defendant concluded to see a lawyer. He did so and found out that he was wrong, but, not until July 13, did he inform the plaintiff, that the latter might cut the wheat. His excuse for the delay is, that the plaintiff seemed to avoid him on a couple of occasions on the highway. If it be true that the plaintiff showed a want of desire to meet him, it is hardly to be wondered at, in view of what had already occurred between them. Had the defendant however been sufficiently anxious to right the wrong he had committed, and to restore to the plaintiff dominion over the crop, he doubtless could easily have found the latter at his habitation, or sent him word by mail or messenger. Nor is it surprising if, on July 13th (although this is denied), the plaintiff, a man unlearned in the law and smarting under a sense of injury, told the defendant that the latter dare not cut the wheat.

The essential questions involved in this case may be thus summarized and answered: First, did the plaintiff own the wheat, and have the right to enter on the land and harvest it ? These rights were secured to him by his lease, as well as by the custom of the country, which is part of our common law, Shaw v. Bowman, 91 Pa. 414, and indeed they are now conceded.

Second, was there a conversion of the crop by the defendant, and, if so, when? There being, in effect, an absolute and unqualified denial of the plaintiff’s right, as well as a positive and final refusal to allow him to cut the wheat on July 4th and 5th, these things would, under the authorities already cited, be plenary evidence of the conversion, provided that a growing crop can be converted without severance, a matter to be presently considered.

Third, if a right of action accrued, when was it complete ? Undoubtedly the plaintiff could have legally brought suit on July 4th, or on July 5 th at the latest.

Fourth, did the permission given by the defendant to the plaintiff, on July 13th, to enter and cutlühe grain take away the right of action already accrued ? The^learned trial judge, going even further than some of the decked cases .warrant, told the jury that if the wheat were worth^s,.much on July 13th as it was at the time of the alleged conversion, there could be no recovery, otherwise, if there had b^fen deterioration in value. This was stating the law most favorably for the defendant: Whitaker v. Houghton, 86 Pa. 48; Hart v. Skinner, 16 Vt. 138; Green v. Sperry, 16 Vt. 390. The jury found that the grain had been damaged and lessened in value, during the interval. The plaintiff, therefore, was n'ot bound to secure help and machinery, a second time, and harvest the overripe and injured crop.

Fifth, did the plaintiff in any way agree to accept the defendant’s offer of July 13th? If he did, of course, at the most, he could only recover the difference in value between the wheat as it was at the date last mentioned and the time of the conversion. The evidence, however, shows that he refused to make any arrangement whatever with the defendant. PTis statement to the latter, if made, that he, the defendant, dare not cut the wheat, taken in connection with all the circumstances, was merely an angry expression of opinion as to the defendant’s legal rights, and did not amount to an agreement to condone the conversion or to resume dominion over the crop, nor does it seem to have been so understood by either party. Had the defendant consulted his lawyer a second time, he would have been instructed to save what he could of the wheat, and thereby make the best of the situation, in which he had deliberately placed himself.

Lastly, will the action of trover lie under the circumstances detailed? In Pennsylvania, growing crops, unlike trees and other spontaneous productions of the earth, are personal property, and it cannot be doubted that in the present case the wheat was as fully personalty, while attached to the soil, as though actually severed therefrom: Backenstoss v. Stahler’s Admrs., 33 Pa. 251. It might therefore be converted, by cutting and carrying it away, by applying the torch to it in the field, or by excluding the owner, when the crop was ready for harvesting, in such a manner as to clearly indicate to him an unequivocal and absolute denial of his right to the grain, and a fixed intent to permanently deprive him of all control over it. In the latter instance the conversion would be complete at once, although the wrongdoer neither then nor thereafter made nor expected to make any profit out of the transaction. Had he retained the plaintiff’s wagon in his field until the weather had destroyed it, just as the elements destroyed the wheat crop, in the present case, who will say that he would not have been liable in trover ? Nor would the plaintiff have been obliged to await the physical destruction before bringing suit. In Stafford v. Ames, 9 Pa. 843, a case much like the one in hand, the ground of the decision was that the plaintiff’s agent “ was prevented from cutting and threshing the wheat; he was illegally kept out of possession and had a right to immediate possession.”

We see no error in the charge or answer to the points. The question, as to whether or not there was a conversion, was fairly left to the jury. The expression of opinion as to this matter, made by the learned trial judge, was fully justified by the facts, and the rule as to the measure of the damages was correctly given. It would answer no good purpose to discuss, in detail, the many assignments of error. They are all overruled.

Judgment affirmed.