
    WARREN N. FITCHETT, Respondent v. THOMAS CANARY, Appellant.
    
      Action for conversion of personal property—Lien of stable keeper, relinquishment of.
    
    For a defence in this action the defendant alleges, that the property in question was sold at auction to satisfy a claim due to defendant; that at plaintiff’s request he bought the property in at $240, and that plaintiff then pledged the same to defendant as security for all his charges amounting to $342.16.
    The defendant boarded and fed the horse until June 1, 1888, when he sold his stable to Heineman Bros., who took possession of plaintiff’s property and charged the expense of its care to plaintiff. Heineman’s Bros, subsequently changed the charge of keeping, etc., to the defendant, at his request, but no arrangement was made between the defendant and Heineman Bros, that the property was to be kept on defendant’s account or in preservation of his lien. The defendant denied the alleged pledge of the property to defendant, who removed the same to New Jersey, without the permission of plaintiff, which acts of defendant constituted the alleged conversion.
    
      Held that the defendant waived his'lien when be transferred his stable to Heineman Bros, and delivered plaintiff’s property to them under a new arrangement by which the expense of keeping and care was to be charged to the plaintiff. Heineman Bros, became and were the plaintiff’s agents; their possession his possession, and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made at the time, by which the Heinemans were to hold the property for the benefit of the defendant and for the preservation of his lien, and no such arrangement was ever made. There being no lien and no sale divesting the plaintiff’s title, the removal of the property out of the state by defendant, without the consent of the plaintiff, constituted in law a conversion for which the defendant is answerable. Assuming to one’s self the property and right of disposal of another man’s goods is a conversion. The fact that the defendant came lawfully into the possession of the property forms no objection or defence to the action. It is the breach of the trust, or the abuse of such lawful conversion, which constitutes the conversion. The use of the thing, without the consent of its owner, or contrary to his wishes, is a conversion. Assuming the right of disposal or the exercise of dominion or an unwarranted control over it, is a conversion. This is sufficiently sustained by the proofs and is not excessive in amount.
    
      Before Sedgwick, Ch. J., and McAdam, J.
    
      Decided May 4, 1891.
    The action, was for the conversion of a bay horse, buggy and harness belonging t.o the plaintiff. The defendant admits the ownership of the property by the plaintiff, and alleges in defence that the property was sold at auction to satisfy a claim due to the defendant, and that at such sale the defendant, at plaintiff’s request, bought the property in at $240, and that the plaintiff then pledged the same with the defendant as security for all his charges aggregating $342.16. The defendant did board and feed the horse until June 1, 1888, when he sold his stable to Heine-man Bros., and they took possession of the plaintiff’s property and charged the expense of caring for it to him. They subsequently changed the charge to the defendant, but no arrangement was made between the latter and Heineman Bros, that the property was to be kept on his account or in preservation of his lien. The plaintiff denied the alleged pledge of the property which was, after the sale, removed by the defendant to New Jersey without , the plaintiff’s permission. The acts aforesaid constitute the conversion complained of. The jury rendered a verdict in favor of the plaintiff for $900. A motion was made on the minutes for a new trial, and from the judgment entered on the verdict, and from the order denying the application for a new trial, the defendant appeals.
    
      Albert I. Sire, attorney, and Chauncey Shaffer of counsel, for appellant, argued :—
    I. At the close of the plaintiff’s case a motion was made to dismiss the complaint on the ground that plaintiff had not maintained his action according to the allegations of the complaint. This motion was denied, to which defendant excepted. In order to have properly maintained his action according to the complaint, plaintiff must have proved, (a) That he was, at the time of the alleged conversion, the owner of the property, (b) That he was entitled to the immediate possession, (c) That the property was in Heineman’s stable under an agreement between the Heinemans and defendant and that it was not to be removed except upon his order, (d) That the property was wrongfully removed by the defendant and hypothecated, (e) The value of the property, It is conceded that plaintiff was the owner. In order to maintain the action, says Park, C. J., in Ayres v. French, 41 Conn. 150, “ the plaintiff must have the immediate right to the property in presentí, and if he has no such right he cannot recover.” Salt Springs National Bank v. Wheeler, 48 N. Y. 495 ; Gurney v. Kenney, 2 E. D. Smith, 132; Zimmerman v. Fairbanks, 35 Wis. 368; Fairbanks v. Phelps, 22 Pick. 535; Philpot v. Kelly, 3 A. & E. 106 ; Griffin v. L. I. R. R., 101 N. Y. 353 and 354. Proof that the defendant did some positive wrongful act is necessary to support an action of trover. Bromley v. Coxwell, 2 Bos. & Sul. 438 ; Rose v. Johnson, 5 Burr. 2825 ; Severin v. Keppell, 4 Esp. R. 156. There was no evidence on the part of the plaintiff that defendant had ever hypothecated the property. The presumption of the lawfulness of defendant’s possession of the property is more than sufficient to rebut any allegation or insinuation that he converted the property by simply removing it “ across the way.” A party who converts property is guilty of a positive wrong, and the wrong, like fraud or any other tort, must be proved, as the presumptions are all against it. Greenleaf’s Ev., § 40. The existence of a state of facts being once shown it is to be presumed that it has continued until the contrary is shown. Green-leaf ’s Ev., § 41. The burden of sustaining an affirmative of an issue is upon the party alleging the facts constituting the issue and so remains throughout the trial. Heineman v. Heard, 62 N. Y. 448. It was shown throughout the entire case that although communications were addressed to and received by the plaintiff to make, and he himself declared that he would make, some settlement of the charges against his property, it nowhere appeared in the evidence that he ever offered to make such settlement, or required the delivery to him of his property. Where the defendant came lawfully into possession there must be a demand and refusal before the commencement of the action. A sale by the defendant after suit brought will not avail. Stone v. Livingston, 6 Johns. 44 ; Purves v. Moltz, 5 Robt. 653 ; 2 Abb. N. S. 409 ; 3 E. D. Smith, 252 ; Gillet v. Roberts, 57 N. Y. 28 ; Powers v. Bassford, 19 How. 309. A mere nondelivery is not a conversion, but a denial of right or title in answer to a demand is. Nelson v. Weil, 12 Weekly Dig. 154. A demand and refusal is usual proof where defendant came into possession rightfully. Rawley v. Brown, 18 Hun, 456 ; 6 Johns. 44 ; Master v. Webb. 60 How. 302, 305; 4 Lans. 263; 3 Hill, 348.
    II. There was no sufficient evidence upon which to base the finding of the jury as to the value (review of testimony as to value.) The verdict ($900,) was, therefore, clearly without evidence to support it upon the question of value. The complaint demanded judgment only for damages in the value of the property. No claim is made for damages for detention or otherwise, nor was any evidence given to that effect. The measure of damages is the value of the goods at the time and place of conversion. Kennedy v. Strong, 14 Johns. 128; Caffe v. Bertrand, How. App. Cases, 224 ; Correll v. Hill, 6 N. Y. 374. For conversion the value at the time of the conversion furnishes the proper rule. Ormsby v. Vermont Copper Co., 56 N. Y. 623; 58 Ib. 308; 60 Ib. 40; 69 Ib. 60. The auction price is a fair test of value. Philbrook v. Kellogg, 18 Hun, 399 ; Crouse v. Fitch, 1 Abb. Ct. App. 475. “ It is the duty of the supreme court general term to set aside a verdict which is against the clear weight of evidence. Justice would be promoted if the supreme court should more frequently exercise its unquestioned right of reviewing verdicts upon the facts. Smith v. Ætna Life Ins. Co., 49 N. Y. 216.
    III. The question is, has the creditor so far voluntarily parted with possession as to warrant the conclusion that he intended to abandon the lien. Allen v. Spencer, 1 Edm. Select Cases, 117. Where promissory notes are pledged by a debtor to secure a debt, the pledgee acquires a specific property in them, which is not lost by their being re-delivered to the pledgor to enable him to collect them. White v. Platt, 5 Denio, 269 ; Clark v. Iselin, 21 Wall. 360 ; Duncomb v. N. Y. H. & N. R. R., 84 N. Y. 208. Plaintiff could have held the property as the agent of defendant. “ The doctrine is now well incorporated in our jurisprudence that the agent to take and keep legal possession for the pledgee, may be no other than the pledgor himself.” Hays v. Riddle, 1 Sandf. 248; aff’d in 32 N. Y. 553 ; Bank of N. Y. v. Vanderhost, 1 Robt. 221; Duncomb v. N. Y. H. & N. R. R., ante. But there was not even the least semblance of a surrender of possession of the defendant or an abandonment of the property of any description. The fact that the defendant, for his convenience, left the property in charge of the Heinemans for a few days after he had sold his business to them, who were stable keepers, and his tenants, cannot fairly be said to have been a surrender or abandonment.- What directions plaintiff may have given in respect to the horse were properly disregarded by the Heinemans, as they were responsible only to the defendant for its preservation and care. A particular finding by a court or jury based upon the evidence in this case that the defendant parted with the possession when he left the property to be kept by the Heinemans could not be upheld. This part of the charge gave the jury the opportunity to find that there had been a lien created on the property by agreement between the parties which was afterwards lost by a surrender of possession, and the court assumed, in charging as it did, that there was evidence to so find when in fact there was no such evidence. The issue should have been narrowed to the question, Was a lien created by agreement ?
    
      Blandy & Hatch, attorneys, and Charles Blandy of counsel, for respondent, argued :—
    I. The facts proven demonstrated conversion in the cepit of the most barefaced character. The defendant attempted, as remarked in the statement, to justify the removal of the property from the stable of Heineman Bros, to the private stable of Sire in the same street, and afterwards from there to defendant’s farm at New Brunswick, N. J., upon the claim as set up in his answer, that on May 22d, at the auction sale, the plaintiff assigned, transferred, conveyed and pledged said horse, wagon and harness to defendant, as security for the payment of said keep, care and charges, costs, expenses and disbursements then accrued and thereafter to accrue, which amounted, at the time of the commencement of this action, he claimed, to $342.16. Upon the stand the defendant, to support this plea, testified to the alleged pledge as follows: “ Plaintiff said to me, ‘ You bid • the horse in, and if he don’t bring enough, whatever the difference is I will bring a man over from Brooklyn, in a day or two, and pay you the whole bill; you have got security enough; you can hold the horse, wagon and harness till I pay you the whole bill, and I will pay it in a few days.’ Then I bid him in for $250, at an expense of $5 auctioneer’s fees, which I paid. Fitchett did not repay the amount to me; Fitchett told me I could take the horse, wagon and harness, and hold them, and if he didn’t bring the man over to sell them for the best price I could, and if there was anything coming to him it would go to him, and if I become the loser he would make good my loss some time on the whole affair. I told him I didn’t want to have that horse at a daily expense, I would make it as cheap as I could, and send him where he would be kept much cheaper; he said, ‘Do whatever you please if I don’t bring this man over in two or three days to redeem the whole lot.’ I took possession that day of the horse, wagon and harness, and retained possession ever since. I kept the horse at my stable after the 22d of May till the 21st of June. I sold the stable out in the meantime, the first of June, and Heineman Bros, took possession ; then after the first of June up to the 21st of June I took charge of the horse and retained possession of him. I paid the bill on him to Heineman Bros.—$17.50. Since May 22d I retained the custody, possession and control of the horse, wagon and harness, and it was subject to my direction all the time.” The testimony of one Payne—a witness for defendant, a dealer in horses—if true, in some respects corroborates the defendant’s version. As opposed to this defense is—(a) A flat denial by the plaintiff of the alleged pledge, and a denial that he saw Payne on the 22d May. (&) Lane, the foreman and bookkeeper of defendant, said he never heard of the alleged pledge; he was present at the sale in question, and afterwards took the horse back to defendant’s stable. He entered the horse on the horse-book for Heineman Bros, for June, as plaintiff’s and entered all the other owners of horses and persons to be charged, and entered plaintiff as a boarder of Heineman Bros., and introduced plaintiff to them as a boarder ’of this horse, (c) The fact that Canary did not remove the property from the stable before yielding up possession to Heineman Bros, on June 1st along with four of his own horses, which he did remove that day. (d) The fact that the horse stood charged against plaintiff on' the books of Heineman Bros, from June 1st to June 10th, when, because they (Heineman Bros.) supposed they would have to pay Canary (defendant) the amount due from plaintiff to him for back keep before they could get the horse as a boarder, therefore they caused the entry which charged plaintiff as owner to be changed, and the horse to be changed in the twofold manner to u Fitchett & Canary.” (e) The fact that on July 6th, after the conversion, Heineman Bros., on Fitchett’s application for a bill for keep, made out the bill to plaintiff for the keep from June 1st to 21st— $17.50. This was before Heineman Bros, knew of any trouble growing out of the removal of the property, and yet, in date, after defendant said he had paid this same bill to Heineman Bros. (/) The fact that Heineman Bros, altered their books to make the charge to Canary on June 10th, and that Canary pretended to have paid this $17.50 bill, and yet could not fix the date of payment, except to say it was before suit, while suit was brought against him on July 3d, and yet the bill was not made out by Heineman Bros, nor dated until July 6th, disproves the defendant’s defence, and creates a strong suspicion against the bona jides of either the defendant or Heineman Bros.’ position as witnesses, to say nothing of the fact that the latter had been sued for parting with possession against plaintiff’s warning to the contrary, and therefore were directly interested. (g) The fact that when the horse-book was made out by Lane for Heineman Bros, containing the name “ W. N. Fitchett” as the owner and person to whom, to make the charge, there stood on the same book a charge against defendant Canary for the keep of four horses for one day, viz., the first day, shows that Canary took away his four horses on the first day of Heineman Bros, taking possession, but did not take away his property. (A) The fact that Lane, on the Tuesday before defendant Canary removed the property, conveyed to Fitchett Canary’s threat to remove the property; the fact that three or four days before their removal Fitchett told Lane not to let Canary have it; Fitchett’s notification to Heineman Bros, not to permit any one to take it out, and the stealthy manner in which the defendant removed the property late in the evening of the day the plaintiff remained around the stable all day, in the endeavor to see Canary, but left without seeing him, and the fact of removing it beyond the jurisdiction of this court to New Jersey, are all important facts, and inconsistent with the idea of any such pledge as defendant contends for. It is true Heineman Bros, swore in substance that they never accepted the plaintiff as a boarder, never recognized or knew him in the transaction, but on the contrary that the horse was charged to Canary on their books, and paid for by him and that he was their boarder. But subterfuge was very apparent when the witness was compelled to admit, on cross-examination, that what is called the “horse-book” was the book of original entry, and in which is entered on the first of every month the names of the customers or boarders, with spaces for the number of horses boarded; and that this horse was originally charged to the plaintiff, “ W. N. Fitchett,” that the entry was changed between the dates of June 1st and 21st by interlining the name of “ Thos. Canary ” over that of “ W. N. Fitchett,” and that such change was made after conversing with the defendant. Lane said the change was made about June 10th, on the direction of Heineman Bros. Whichever of these dates is correct is not material; it is sufficient to know that on July 6th, long after the conversation had taken place, the plaintiff sent his brother Alexander Fitchett to Heineman ■ Bros, for a bill for the keep from June 1st to June 21st, when Heinéman Bros, made out and delivered Exhibit “ A ” charging it to plaintiff. According to defendant’s evidence he had paid this bill prior to July 3d, yet Exhibit “A” was not made out until July 6th; Heineman admitted furnishing this Exhibit “A” to plaintiff, and also admitted that Lane had introduced plaintiff to them as one of their boarders after they entered into possession. It cannot be said that the verdict was influenced by passion or prejudice, or clearly against the evidence. Hynes v. McDermott, 7 Abb. N. C. 98. To set aside the erroneous conclusion of the jury must be unmistakable. Hynes v. McDermott (supra).
    
    II. Even if defendant had established a lien by special pledge, he could lose it by parting with possession of the property. Geneva, etc., R. R. v. Sage, 35 Hun, 95. The learned judge correctly propounded the legal rights of the parties in this regard when he charged : “ Although the defendant may have had a lien, he may afterwards have lost it again. If, when he sold his business out to Heineman Bros, on June 1st, 1888, he delivered plaintiff’s horse, wagon and harness to the Heineman Bros, to be kept by them for the account of plaintiff, he parted with the possession of them, and by parting with his possession he lost his lien; but if he reserved the horse, wagon and harness for his own account, and they were kept by Heineman Bros, for his own account and not for account of the plaintiff, the defendant preserved his lien.” To the first portion or branch of this proposition—that italicized — the defendant excepted. The exception is not well taken. If the defendant did part with possession, even if the jury should believe in the first instance that a pledge had been created —he thereby lost his lien. Geneva, etc., R. R. Co. v. Sage, supra. In that case a railroad company ivas held to have lost its lien for freightage in carrying a horse, by delivering thereof to the consignee, and quoting from the opinion of Beardsley, J., in the old case of Bigelow v. Heaton, 4 Denio, 496, the court say: “ A relinquishment of possession by one who has a lien upon property, is an abandonment of the lien. This, as a genéral rule, is entirely settled. By a transfer of the possession the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner or other person liable for the debt.” That the defendant parted with possession when he sold to Heineman Bros, is clearly demonstrated by the review of the evidence under the first point, and upon this point, therefore, the verdict is fully sustained.
    III. It was unnecessary to prove a demand before suit. The action is for conversion in the cepit as distinguished from detinet. The facts established a tortious taking by the defendant, in one or both of the following respects. (1) By taking the horse out of the possession of the Heinemans. In such a case it is unnecessary to prove a demand and refusal. Farrington v. Payne, 15 Johns. 432 ; McKoon v. Geils, 5 Weeldy Dig. 486 ; Bates v. Conkling, 10 Wend. 389 ; Thompkins v. Haile, 3 Ib. 406. (2) But conceding, for the sake of argument, that the property was not in the possession of the Heinemans, the removal of the horse against the express directions of the plaintiff was a conversion in itself and no demand was necessary. Van Brunt v. Shenk, 11 Johns. 428 ; Syeds v. Hay, 4 Term Rep. 264; Esmay v. Fanning, 9 Barb. 176 ; Hallet v. Carter, 19 Hun, 629 ; Horsefield v. Cost, Add. (Pa.) 152 ; Johnson v. Howe, 7 Ill. 344; Boyce v. Brockway, 31 N. Y. 490; Laverty v. 
      Suethen, 68 Ib. 522. Demand and refusal are mere evidence of conversion : it may be proved by other facts. Jessop v. Miller, 1 Keyes, 321 ; Johnson v. How, supra.
    
   By the Court.—McAdam, J.

The defendant waived his lien, when he transferred the stable to Heine-man Bros., and delivered the' plaintiff’s property to them, under a new arrangement by which the expense of keeping it was charged to the plaintiff. Heine-man Bros, became the plaintiff’s agents; their possession, his possession, and this voluntary surrender was a relinquishment of the defendant’s lien, which could only be preserved by some understanding made at the time, by which the Heinemans were to hold the property for the benefit of the defendant, and for the preservation of his lien. See Geneva, etc. R. R. Co. v. Sage, 35 Hun, 95; Bigelow v. Heaton, 4 Den. 496. No such arrangement was ever made. The answer does not plead a stable-keeper’s lien given by the statute [Laws 1872, ch. 498 ; Laws 1880, ch. 145), nor a common law lien by agreement of the parties, but a sale by the plaintiff’s authority, a buying in by the defendant on plaintiff’s account, and a subsequent pledge until $342.16 was paid.

The plaintiff denies that any such understanding was had or agreement made (fols. 121, 122). The conflict was submitted to the jury, and they adopted the plaintiff’s theory that no such contract or pledge was made.

The defendant, shortly after the auction sale, removed the property to the private stable of one Sire, at No. 211 West 58th street, where it remained a few days under defendant’s control, and from thence it was removed by him, to the farm of Sire, at Morris Farms, New Jersey, and from there to the farm of the defendant at New Brunswick.

There being no lien, and no sale divesting the plaintiff’s title, the removal of the property out of the state, without the consent of the plaintiff, was an unwarranted assumption of control of his property, not justified by necessity or by any warrant whatever, and constitutes in law a conversion for which the defendant is answerable. (How. Tr., § 629 ; 2 Hilliard on Torts, 4th ed. 32, et. seq.) The defendant had no more right to take the plaintiff’s property to Morris Farms or New Brunswick than he would have to take it to Texas or to Europe.

Assuming to one’s self the property and right of disposing of another man’s goods is a conversion. The fact that the defendant comes lawfully into possession forms no objection to the action. It is the breach of the trust or the abuse of such lawful possession which constitutes the conversion. Murray v. Burling, 10 Johns. 172. The using a thing without the license of the owner, or contrary to it is a conversion. Assuming the right to dispose of it, or exercising dominion or an unwarranted control of it, is a conversion.

Any asportation of a chattel for the use of the defendant or some third person is a conversion of it, because it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, for he is entitled to the use of it at all times and in all places to suit his pleasure. Addison on Torts, 3d ed., 310.

The jury upon ample evidence as to value, assessed the damages at $900. The verdict is sufficiently sustained by the proofs, and is not excessive in amount. The exceptions taken are without merit, and the motion for a new trial was properly denied.

For these reasons, the judgment and the order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Ch. J. concurred.  