Kelsey v. Griswold , 6 Barb. 436 ( 1849 )

By the Court, Edmonds, J.

The statute of limitations begins to run from the time the cause of action accrues. (2 R. S. 224, § 18.) In trover the cause of action accrues upon the conversion. The trouver or finding is immaterial. It is the conversion which is the gist of the action. A conversion is the wrongful assumption of property in, or right of disposing of, goods, such as discounting a lost bill after notice; (4 Taunt. 799 ;) or taking the property of another by assignment from one who had no authority to dispose of it; (6 East, 538 ;) or denying goods to him who has a right to demand them. (6 Mod. 212.) The action being founded on a conjunct right of property and possession, any act which denies or is inconsistent with such right is a conversion. (Bristol v. Burt, 7 John. 254.) In such case a demand and refusal are unnecessary. They are necessary only when the wrongdoer became in the first instance lawfully possessed of the goods, and there is no proof of an actual distinct conversion. (2 Saund. 47, e.)

Demand and refusal are never of themselves a conversion, except perhaps where the wrongdoer has the property actually in his possession at the time. They are merely evidence of a conversion; not indeed the only evidence; for an actual conversion may still be proved. But in the absence of such proof, they are evidence epough to entitle the party to recover. (Baldwin v. Cole, 6 Mod. 202. McCombie v. Davis, 6 East, 538. Hoare v. Parker, 2 T. R. 376.)

This rests upon this principle—that if the wrongdoer has sold or disposed of the property such sale is the conversion, and that may be evidenced either by proof of the sale or by proof of demand and refusal; but where he still retains the property in his possession non constat, he may retain it for the rightful owner. But when, on demand, he refuses to deliver to such owner, he at that moment assumes to exercise the right of property in himself, and thus converts it to his own use.

Hence in the action of trover, when the inquiry is at what time the statute of limitation begins to run, reference is had to the time of the conversion, and never to the time of a demand and refusal; unless such refusal be of itself a conversion, or the demand and refusal is the only evidence. In the latter case, the time of the demand and refusal is the criterion, simply because there is no other evidence of a conversion, and no other means of ascertaining when a conversion did take place.

In conformity with these principles the authorities are, that the statute begins to run at the time of the conversion. (2 Cowen’s Tr. 208, citing 7 Mod. 99.) Read v. Markle, (3 John. 523,) was where property was seized on an execution which was afterwards set aside. The court held that the statute began to run from the time of the seizure, because the execution was void. In Granger v. George, (5 Barn. & Cress. 149,) the action was trover for a box of papery placed in the defendant’s custody in 1816, and as he had come rightfully into the possession of them, unless there was proof of an actual conversion, a demand and refusal was necessary. Accordingly, in 1824, they were demanded of him, but on proof being given that in 1818, more than six years before suit brought, he had disposed of them by delivering them over to certain other persons, the plea of the statute was held to be a good bar, notwithstanding the proof that the plaintiff did not know of the conversion in 1818 until his demand in 1824; Abbott, O. J. holding, in terms, that the act began to run from the time of the act done by the defendant; and Bayley, J. remarking that the goods having been out of the defendant’s'possession more than six years before suit brought, it was manifest that he could not have converted them within that period. (See also Lovell v. Martin, 4 Taunt. 799 ; Woodsworth v. Harley, 1 B. & Ad. 391; 1 Chit. Pl. 9th Am. ed. 499, n. k. ; Ball. on Lim. 97; Horesfield v. Cort, Addis. Rep. 152; White v. Edgman, 1 Tenn. R. 19.)

Testing the case under consideration by these principles, it is manifest that the cause of action was barred by the statute. The notes for which the suit was brought were delivered to the defendant as collateral security for an advance of exchange on the 9th of March, 1837. On the 23d of August, 1838, he had been repaid that advance, but he still had these notes in his hands. At that time a demand was made upoii him, and he refused to deliver them up. That was, under the circumstances, a conversion—not merely evidence of it—but an absolute conversion of them to his own use. This suit was commenced February 1, 1845, nearly seven years afterwards.

But again; the two notes against Donner were collected by the defendant at the time they became due, that is 15 to 18 January, 1839, and the note against Cronkhite was compromised and given up by the defendant about the time it became due, that is, in September, 1838. At these times, it was that the defendant made an absolute disposition of the notes, and from that time they were no longer in his possession. These events also occurred more than six years before the commencement of the suit.

Now if the defendant had authority to collect the notes, he can not be sued in trover for them, but must be sued for money had and received; for he has done nothing with them which he was not authorized to do. (Palmer v. Jarmain, 2 M. & W. 282. Stierneld v. Holden, 4 B. & C. 5 ; S. C. 6 D. & R. 17.) But if his authority to collect them had expired by reason of the payment of the debt for which they had been pledged and he still received the money upon them and gave them up* that was a conversion of them: (Alsager v. Close, 10 M. & W. 576. Atkins v. Owen, 4 A. & E. 819; S. C. 6 N. & M. 309.) So that whether the conversion was constituted by the demand and refusal while the defendant had the notes in his possession and could give them Up, or by his unauthorized collection of them, in either event the cause of action accrued more than six years before suit brought and is barred by the-statute.

If is insisted, however, for the plaintiff, that the cause of action accrued at the time of the second demand and refusal in December, 1844. To this claim it seems to me there are several insuperable objections.

1. If the plaintiff is right, then is the statute of limitations virtually repealed, so far as the action of trover is concerned. For no matter though the cause of action had accrued more than six years back, either by actual conversion or by a demand and refusal, the statute would begin to run from a second demand ; and if a second demand and refusal have this power of taking a case out of the statute, a third and fourth must have the same power, and so on until the party shall choose to let six years elapse between any two of the numerous demands he may please to make.

2. The second objection is that where a party, at the time of his refusal, has it not in his power to deliver up the goods demanded, the refusal is no evidence of conversion. Thus where he has deposited the paper demanded with his attorney, who has a lien upon it, (Smith v. Young, 1 Camp. 439,) or a carrier or a wharfinger has lost the goods, (Anon. 2 Salk. 655 ; Ross v. Johnson, 5 Burr. 2825; Severin v. Keppell, 4 Esp. 157; Dewall v. Moxon, 1 Taunt. 391;) or he has previously parted with them by sale, (Edwards v. Hooper, 11 M. & W. 363;) or where the property, left at livery, had been seized on attachment and was at the time in the custody of the law, (Verrall v. Robinson, 2 C. M. & R. 495.)

From these cases it would seem that the action of trover will not lie unless the act of parting with the possession shall have laid a proper foundation for it. Or, in other words, if there has been no actual conversion, that no demand and refusal can lay a foundation for the action of trover, unless the party has the property demanded in his possession, at the time of the refusal, so that he can comply with the demand; and the party aggrieved must resort to his remedy by a special action on the case, or in assumpsit,, as the case may be.

And this may be so ; for otherwise a party might be made liable in trover when he had never been guilty of a conversion, and that which would otherwise be an action of assumpsit might be converted into a tort, at the pleasure of the claimant, and without any fault on the part of the other party, and without his having it in his power, by any act he could perform, to screen himself from the action.

These considerations are eminently applicable to the case before us. For if the defendant had a right to collect these notes, the action of assumpsit, in which he might be liable to his original debtor and in which he might set off his demands, could at the pleasure of the present plaintiff, be converted into a tort and the defendant thus be deprived of his set-off. If he had no right to collect them, and yet did so, long ago, and while the notes in fact belonged to his debtor, who by his long silence may well be considered as having acquiesced in that mode of paying his debt, an act which the statute of limitations barred before the plaintiff had any interest in the matter, may be revived at the plaintiff’s pleasure, and the statute of repose thus be avoided after it had actually attached.

I have confined my examination to only one of the points raised before the referee, because I have regarded it as decisive of the case. If I were to go any farther I might be met by a doubt whether the plaintiff did in fact acquire any title to these notes which would enable him to sue in his own name, and whether the third partner of the firm of Lee & Co. whose interest he did not acquire, was not a necessary party ; and the farther doubt whether an action of tort passed to the assignee in bankruptcy in such manner as to authorize him to convey it to this plaintiff I do not, however, attempt to solve these doubts; as the case must be disposed of on the other point, which I have considered at large.

The motion to set aside the report of the referee must be denied with costs.