
    Heine v. Anderson.
    In an action to recover damages for the wrongful detention of personal property it is not necessary to set forth the plaintiff’s title in the complaint. A general averment of ownership is sufficient.
    Under such a complaint a hill of sale from the former owner may he given in evidence.
    
      (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 15 ;
    July 2, 1853.
    Where the goods are in the possession of a bailee of the vendor, the bill of sale gives an immediate and valid title to the purchaser, without a formal delivery of the possession. The possession of the bailee becomes that of the purchaser.
    Such a bill of sale is not merely a transfer of a right of action, but of the goods themselves, and gives an immediate right to the purchaser as owner to demand their restoration.
    Where the bailee claims a lien, the claim must be positively made, and its nature, if not its amount, be stated.
    When the claim is not so made, his refusal to deliver the goods is sufficient proof . of a conversion.
    Judgment for plaintiff.
    This was an action to recover damages for the wrongful detention by the defendant, of certain articles of clothing, and stuff for clothing, alleged to be the property of the plaintiff.
    The answer took issue on all the averments in the complaint.
    The cause was tried before Mr. Justice Bosworth at the trial term for March, 1853. On the trial, Justus Uhlendorf, a witness on the part of the plaintiff, testified that he was a tailor, and that in December, 1851, he was in partnership with Mr. John Bracks, and that he and his partner kept a clothing store at No. 614 Water street, in the city of New York; that said store was burnt down in December, 1851, and part of the goods from the store was saved from the fire; that the goods saved were 24 coats; 36 pair of pants; 36 vests; a lot of silk and woollen stuffs for vests and pantaloons, and other materials for clothing: and that the value of the goods saved was about two hundred and fifty dollars; that the said goods were taken to the house of defendant, and that the house of defendant was about 200 yards from the place where the fire was.
    Upon cross-examination he testified that after the fire he went to the defendant’s house and saw the goods there; they were the same goods that had been in his store, and he examined and counted them.
    J ames McG-ay, sworn on behalf of the plaintiff, testified that he was subscribing witness to a bill of sale (now produced) by Uhlendorf & Bracks to the plaintiff in this suit, and saw them execute the same; which said hill of sale, he then and there produced, and offered to read the same in evidence; and thereupon the defendant’s counsel, W. Allen, Esq., objected to the , admission of the same, in evidence, because— /
    1st. The assignment, or bill of sale, was irrelevant, as its effect was to make the plaintiff an assignee of a thing in action, ^ which fact was not averred in the complaint. And ¡!
    2d. Because he averred that this suit having been brought : for a wrongful detention of said goods, that the same was a !l , tort, and was not assignable. His honor the judge overruled ¡1 ■ the several objections, and the defendant excepted. The bill - of sale was then read in evidence, and was in the words and ¡i figures following:
    “ Know all men by these presents, that We, Justus Uhlendorf, and John Bracks, of the city of Hew Y ork, of the first part, for and in consideration of the sum of fifty dollars, lawful money of the United States, to us in hand paid, at or before the ensealing and delivery of these presents, by Henry A. Heine, of the same city, of the second part, the receipt whereof is hereby acknowledged, „ have bargained and sold, and by these presents do grant and convey, unto the said party of the second part, his executors, administrators and assigns, about 36 pair pants—buckskin, doeskin, kerseymere and light goods; about 36 vests—silk and summer vests; about 24 coats—summer coats, pilot cloth coats and fine cloth coats; lot of silk stuffs for vests and woolen stuffs for vests; lot of pantaloon stuffs; lot of lining for coats ; lot of alapaca, and some buttons—the same being the goods ■ saved from the fire that took place in our store, in December last, and this conveyance being intended to cover all the- property so saved, whether enumerated here or not. To have and to hold the same unto the said party of the second part, his executors, administrators and assigns for ever. And we do for ourselves, our heirs, executors and administrators, covenant and agree, to and with the said party of the second part, to warrant and defend the sale of the said goods hereby sold unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whatsoever.
    Tn witness whereof, we have hereunto set our hands and seals, the eighteenth day of June, in the year one thousand eight hundred and fifty-two,
    61 Justus Uhlenpobf. [l. s.]
    " John Feaoks, [l. s.]
    
      " Signed, sealed, and detmered) m the presenee of j
    " The words £ and now at’ erased before signing.
    “Witness as to John Feaoks,—James MoGay, As to J. Uhpendobf,—James MoGay.”
    The same witness then testified that a day or two before the commencement of this suit he went, in company with the plaintiff, to the house of the defendant, and took with him the bill of sale (above-mentioned), that he demanded the goods in question from the defendant for the plaintiff, and read the different goods off from the bill of sale to him, and that the defendant refused to give up the goods until he was paid for keeping them.
    Upon cross-examination he testified that he showed and read the bill of sale to the defendant; told him I wanted the goods, Do not recollect the exact words used by the defendant, but that substantially- it was he would not give up the goods until he was paid for saving them, or keeping them, or something to "that effect.
    This witness also testified that he did not offer to pay the defendant anything, and he did not know of any offer having been made by the plaintiff to pay him, Anderson made no other claim, and said the goods were not his.
    The plaintiff here rested his case, and the defendant’s counsel then moved for a nonsuit or for the complaint to be dismissed, upon the ground that the plaintiff’s evidence showed that the case was an assignment of a tort; and also because the defendant had a lien on the goods for his trouble in storing them, and also on the ground that no demand and refusal to deliver up said goods had been shown. The judge denied the motion upon the ground (among others) that there was no lien set up in the answer, and the defendant excepted.
    The defendant’s counsel then called, as a witness on his behalf, Mr. Oly Anderson, the defendant in the suit, to the admission of whose testimony the plaintiff’s counsel objected, upon the ground of his being the defendant. His honor the judge overruled the objection, on the ground that plaintiff had introduced Mr. Uhlendorf, the person through whom the right to the property was claimed to come to plaintiff after it was found in defendant’s possession, and the plaintiff excepted.
    Mr. Oly Anderson, the defendant, was then sworn as a witness on his own behalf, and testified that he was a police officer of the city of New York; that the fire referred to by the witness Uhlendorf, took place in December, 1851; that the goods saved from the fire were in the first instance placed in the yard of his house; that he afterward took them up stairs, in his house—that they were partly wet and damaged, and he had them spread out and dried; that Mr. Uhlendorf came to his house the next day after the fire, and saw the goods, and requested that the goods might remain where they were until he could get a place, and that he agreed that they might remain; that afterward the insurance office people came and saw the goods, and told him not to deliver the goods to anybody till he heard from them. Afterward a Mr. Ahrens came and said the goods ought to be delivered to him because Uhlendorf & Bracks had bought them from him, and they had not yet been all paid for. He also testified that he had caused an advertisement to be inserted in the newspaper, in reference to these goods, which cost him four dollars. The New York Sun newspaper of the date of the 15th day of June, 1852, was then produced in court, and the witness pointed out the advertisement referred to; and the same was in the following words:
    “ The proper owners of the goods of the merchant tailor store, saved from the fire at Ho. 614 Water street, H. Y., on the 9th of December last, please call at 303 Front st.,. corner of Governeur slip, and pay charges and take the goods, or they will be sold at public auction in consequence of the same. J. K 15, 3,165,”
    The witness further testified that he told the different parties that he wanted to find the true owner of the goods, and he thought he ought to be paid for the trouble he had had; but he did not insist as a matter of right that anything should be paid. The witness further' testified that when Mr. McGay called upon him about the goods, Mr. McGay asked him if he thought he had a lien on the goods; and that he replied to Mr. McGay that he thought he ought to be paid for his trouble in keeping and drying the goods.
    He further testified that the goods remained at his house till June, 1852; and that the storage of the goods during that time was worth one dollar.
    Upon cross-examination he testified that he had never before named any sum as being an estimate of what he thought himself entitled to; and in reply to a question put by a juror, as to what had become of the goods, he replied that they had been sold.
    The defendant’s counsel here rested his case. Whereupon the defendant’s counsel requested the judge to charge the jury that no demand and refusal had been shown, and to direct a verdict for the defendant, but his honor the judge refused so to charge and direct; and the defendant’s counsel then and there excepted, and his honor the judge charged the jury that if they believed the goods in question were the goods of Uhlendorf & Tracks at the time the fire occurred, and had been disposed of by them to the plaintiff, and if they believed that the plaintiff had subsequently thereto, and before the commencement of this action, demanded the goods from the defendant, and that he had refused to give them up, that the plaintiff was entitled to a verdict for the value of the goods, subject to the opinion of the court upon the questions of law that had arisen during the trial, and which would be disposed of by the court at the general term.
    Neither plaintiff nor defendant excepted to the charge of the judge, nor any part thereof, and the jury, without leaving their seats, rendered a verdict for the plaintiff for §150, subject to the opinion of the court, as aforesaid. The case was submitted by the counsel of the respective parties upon printed points,
    
      J. McGay, for plaintiff.
    I. The bill of sale of the goods in question to the plaintiff, given in evidence by the plaintiff, was not irrelevant, and was admissible to prove the ownership of the goods in the plaintiff; the defendant having, in his answer, denied the wrongful detention of the plaintiff’s goods.
    II. Ro tort was committed by the defendant until after the goods were sold to the plaintiff. Because the goods were lawfully in the possession of the defendant while they remained the property of Uhlendorf & Bracks, they never having demanded them. But, having been sold by them to the plaintiff, and he having demanded them, and they not having been surrendered to him—-hence the tort. There was no tort to assign—because no tort had been committed when the bill of sale was executed; and the question, whether or not a tort is assignable, does not arise in this suit,
    III. The motion to dismiss the complaint was properly denied; because, as a matter of fact, the evidence did not show this case to be the assignment of a tort, and because there had been a demand of the goods, and a refusal to deliver them, inasmuch as the defendant had refused, and, besides, the nondelivery was a refusal,
    IV. The motion to dismiss was properly denied, also, because the defendant had not a lien on the goods, for saving them or drying them; because, 1, There is no evidence that the defendant saved the goods at all. “ The goods were taken to the house of the defendant.” The fact being that the goods were saved by the owners, and taken by them to the defendant’s yard, and, 2. He was not requested to dry them, and “ non constat,” but the owners would rather have had them remain wet, and, 3. The law does not give a lien in such cases. The lien claimed by the defendant’s counsel exists only in the case of goods saved from a ship on fire at sea, and goods thrown on shore from a wreck; and, besides, 4. The defendant himself not only did not claim a lien when he was asked for the goods, but, in his testimony, actually disavowed having one. “ He did not insist, as a matter of right, tbat anything should be paid,” and “he had never (before he gave his testimony) named any sum, as being an estimate of what he thought himself entitled to.” 5. Of course, defendant had no lien for “ keeping” or storing the goods, without an agreement to that effect; no agreement is claimed.
    
      V. The motion to dismiss was properly denied by the judge, Upon the ground that even if the defendant had a lien, it should have been claimed in the answer.
    VI. The judge properly refused to charge the jury, that no demand and refusal had been shown, and to direct a verdict for the defendant, because the evidence was the contrary.
    
      W. Allen, for defendant.
    I. The judge erred in refusing to nonsuit the plaintiff. 1. The action is trover (Spalding v. Spalding, 3 How. 297; Dows v. Green, 377 do., 1 Code Rep. 64), 2. The ground of such refusal as assigned, was matter of evidence and not of averment. The answer is a denial, which formerly would have been “ not guilty,” under which all matters were admissible in defence except “ release” and " Statute of limitations.” [See Ohitty’s PI. title "Trover.”] 3. No demand and refusal was shown. Charges for" lien should have been tendered (20 Wend, 268; 2 Mason, 77, 80, 81).
    II. The bill of sale was improperly admitted. Its effect was to show a case different from the complaint, The action claims damages, and is therefore for conversion of plaintiff’s property. The bill of sale merely showed plaintiff to have a right of possession in property which had never been reduced either actually or constructively. The refusal to deliver up could only be an injury to such right of possession. The evidence was therefore irrelevant, It was also inadmissible, because it sustained no allegation of the complaint, Its highest effect Was to show right of possession in plaintiff to property which came to defendant’s possession as owned by Uhlendorf & Fracks. Defendant Was their bailee. Any alleged change in ownership might be controverted by defendant. For these reasons an averment of the assignment was material. Not being so averred, evidence thereof was irrelevant, and a surprise upon defendant.
    III. Such assignment furnished no link in the plaintiff’s case. Being the assignee of a mere right to possession, his remedy was by “claim and delivery” in the detinet. His ¿hts could not be the basis of such an action as this. The „ remedy he chose could be enforced only by the assignors. He is, therefore, before the court as the assignee of a tort. That he is such assignee is apparent from the fact that it is through the bill of sale alone that he has acquired rights.
    IV. The judge should have charged that no demand and refusal had been shown. The verdict should be set aside with costs.
   By the Court.

None of the objections to" the plaintiff" recovery are tenable.

The answer denied property in the plaintiff, and as he had never been in the actual possession of the goods, he could only establish Ms title by proving a transfer from the former owner. The bill of sale was therefore properly admitted in evidence, although not set forth in the complaint. In an action of this nature, a general averment of ownership in the complaint is sufficient.

The goods, at the time of the sale, were, in judgment of law, in the possession of the defendant, as the agent or bailee of the former owners. Uhlendorf, one of the owners, had requested Mm to retain them for a time, and he had agreed to do so ; the sale, therefore, to the plaintiff, being made by an instru- ( ment in writing, gave Mm an immediate and valid title, with-, out a formal delivery of the possession. From the time of its - execution, the possession of the defendant became that of the; plaintiff.

As it does not appear that before the sale there had been any conversion of the goods by the defendant, or any denial by Mm of the title of the former owners, the sale was not a transfer of a meie right of action but of the goods themselves, and from that time the plaintiff was entitled, as owner, to demand their restoration.

, A demand and refusal were sufficiently proved by the testimony of Mr, HcG-ay, and as the question was submitted to the jury, Were found by them in the verdict which they rendered for the plaintiff. Had not the proof been given, the admission of the defendant, that he had sold the goods, was sufficient to render him liable. As there was iio proof that this sale was made after notice to the plaintiff of whose rights as owner he had full notice, it was plainly wrongful. "Whether the defen« dant had a lien upon the goods for the price of their safe-keeping, it is unnecessary to consider, for, as we understand his testimony, he never demanded a compensation as a matter of right, and if he really meant to insist upon a lien, he was bound to make a positive claim, if not to "state its nature and amount.

The plaintiff is entitled to judgment, with costs.  