
    LEVERING vs. BROOKS.
    Where there is an actual conversion, it is not necessary to make demand before bringing suit.
    Letters and conversation between agents of one party cannot be xe«ceived in evidence to affect the other party.
    Error to Common Pleas No. 1 of Philadelphia County. No. 144, July Term, 1884.
    
      Ths was an action of trover and conversion to recover the value of certain railroad tics, brought by Brooks and George .against William A. Levering. The charge of the Court and ■answers to points were as follows, per
    Pierce, J.
    This was an action of trover and conversion to recover damages for the conversion of the property, of one man to the use of another. If a man converts my property to his own use I have an action against him. In such cases it is sometimes necessary to prove a demand and refusal, but a conversion can be proven without.
    In this case both parties claim because Hall was their agent. In 1881 he was sent by Levering to buy ties, and money was •given him for that purpose. In October, 1882, he owed Levering $1,770. There were no direct transactions in 1882. Levering sent an agent to hurry up the ties. He sent young Stewart. The elder Mr. Stewart then went, he found ties which were said to be Hall’s, he paid the charges against them and had them shipped to W. A. Levering. The allegation of plaintiff is that they were bought by Hall for them, not for Stewart or Levering, and that Hall had no authority to send to Levering. The question is, whose ties are they? If Brooks & George’s, the taking without their consent was an unlawful conversion? Plaintiffs say they paid $3,800 for the ties — they are our ties, we paid for them with our money, by our agent. Their transactions wei'e in 1882; Levering had furnished no money except in 1881. Ixi 1882 plaintiffs say they furnished money, in 1882 the ties were bought with their money. Stewart ¿xaid xnoney for the ties that were connected with Hall, to wit: $173.08 to parties who had the ties. If these were the plaintiffs’ property this would not establish a property ixi them — axi actioxi might lie for money paid for ties. With 600 ties it is adxnitted Hall had nothing to do. If the others were the plaintiffs’ you must deduct the value of the 600. Whose ties were they? If defendant’s, nothing further is necessary; if the plaintiffs’, then you must give the value at the time of the conversion. Freight cannot be deducted, as that would have been to Baltimore and not to Philadelphia. What was a fair value if so converted ? The true -measure of damages is their value at the place of conversón.
    If you find that Brooks and George were the owners of the ties, and that Hall had no authority to dispose of them, then the mere fact that Levering believed tfiat Hall had the right to part with the ties and dealt with him upon such belief is of itself no defense whatever to this action.
    Affirmed.
    II. If you believe that Brooks and George owned the ties, and gave Hall no authority to dispose of them, then under the ■evidence your verdict must be for the plaintiff.
    Affirmed.
    I. Defendants’ Points — If the jury find that defendant’s agent took the ties and no demand was made for the ties of defendants, then this action will not lie and verdict must be for ■defendants.
    Refused.
    II. If the jury find that defendant contracted with Hall for the ties, paid for them and took them away, then verdict must he for defendant, even if plaintiff had also paid for them.
    Refused.
    III. If the jury find that defendant’s agent found the ties in Hall’s possession and paid for them and took them away, then the verdict must be for the defendant, even if plaintiff had also paid for them.
    Refused.
    IV. If the jury believe that defendant or his agent paid for the ties, then verdict must be for the defendant.
    Refused.
    V. Under all the evidence verdict must be for the defendant.
    Refused.
    The jury rendered a verdict for plaintiffs for $544.12. Levering took a writ of error, assigning the following errors :
    
      T. The Court erred in refusing to grant defendant’s motion for non suit.
    2. The Court erred in entering judgment for the plaintiff upon the following point reserved: “Whether it is necessary for plaintiff to make demand of defendant for the ties before-.bringing action.”
    3. The Court erred in not entering judgment for defendant upon said p»int reserved.
    4. The Court erred as follows: “Defendant offered to-prove conversations and letters between Hall, agent for defendant, and Stewart, also agent for defendant in relation to-the ties in question, and especially the following letter dated five days before the delivery of the ties:
    Macicali/s Wi-iarf,
    Mr. J. R. Stewart, Sept. 27th, 1882.
    Dear Sir: — On my visit to St. Mary’s County I find I shall' ¡need two hundred and sixty dollars to enable me to give barge full load. Send nothing but money, checks will be-of no use whatever. I have nothing from you since you left. Order barge to report to G. R. Graves, at Coles Creek or Sand Gates. Send money by Steamer Wenonah to me at Mackall’s Wharf. Write me ahead. I hope barge will be here very quick. I wish to give immediate load to her so that I can leave for Baltimore at an early day. Respectfully,
    E. G. W. HALL.
    Objected to. Objections sustained. Offer refused. Exception noted for defendant.
    5. The Court erred as follows: Question to witness who-shipped the ties to defendant: “Did the parties to whom you paid the wood leave on these ties claim to own the ties ?” Objected to. Objection sustained. Question ruled out. Exception noted for defendant.
    
      C. B. Taylor and F. K. Hippie, Esqs., for plaintiff in error,
    argued that a previous demand is necessary before bringing suit; that trover only lies where there is a tort; Heck vs. Shener, 4 S. & R., 257; Bunting vs. Dessau, 9 Phila., 31; Gurney vs. Kenney, 2 E. D. Smith, 132; Taylor vs. Hanlon, 14 W. N. C., 6. The letter was admissible as part of the res gestae and it was not necessary to be precisely contemporaneous; Bateman vs. Bailey, 5 T. R., 512; Smith vs. Cramer, 1 Bing. N. C, 585; Rawson vs. Haigh,(2 Bing. 99; Ridley vs. Gyde, 9 Bing., 349; Rouch vs. Great Western Ry. Co., 1 A. & E., 51; Commonwealth vs. Woelper, 3 S. & R., 29; Henry vs. Warehouse Co., 2 W. N. C, 390; Tompkins vs. Saltmarsh, 14 S. & R., 275; Elkins vs McKean, 79 Pa., 493; Gilchrist vs. Bale, 8 Watts, 355; Ellis vs. Guggenheim, 20 Pa., 287; Woodwell vs. Brown, 44 Pa., 121.
    
      A. T. Frecdley, Esq., contra,
    
    argued that where conversion is proved, a demand is not necessary; Horsefield vs. Cost, Addision 154; Carey vs. Brght, 58 Pa., 83; Yeager vs. Wallace, 57 Pa., 368; Etter vs. Bailey, 8 Pa., 442. The declarations of Hall were not evidence; Fairlie vs. Hastings, 10 Vesey, 126. Letters of third persons are not admissible; Wright vs. Tatham, 7 Adol. & Ellis, 313. Error does not lie to a refusal to enter a compulsory non-suit; Bavington vs. Pittsburg R. R., 34 Pa., 358; Pownall vs. Steele, 52 Pa., 446; Telegraph Co. vs. Wenger, 55 Pa., 262; Mobley vs. Bruner, 59 Pa., 483.
   The Supreme Court affirmed the judgment of the Common Pleas on April 13th, 1885, in the following opinion:

Per Curiam.

There was no error in the rejection of evidence covered by the fourth and fifth assignments of error. Letters and conversations between persons, both agents for the plaintiff in error, were not admissable to affect the opposite party; nor was the unsupported claim of one to whom the wood leave was paid, evidence to establish a right of property in the ties. As-the taking of the property was unlawful, that was in itself a conversion; so no demand was necessary. Moreover, the defense set up was a claim of right to the property. It was a persistent denial of all right of property in the plaintiff below. There was no error in entering judgment in his favor on the point reserved.

Judgment affirmed. - ■ . - -  