
    (85 Hun, 540.)
    HOVEY v. BROMLEY.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    Trover and Conversion—Demand—When Necessary.
    In an action for conversion, it appeared that defendant hired plaintiff’s .mule from plaintiff’s servant, supposing that it belonged to the servant. While in defendant’s possession, the mule became sick. Plaintiff was notified, and took charge of the mule, which soon afterwards died. Held, that plaintiff could not recover, as a demand and refusal is necessary in order to maintain trover against one who receives property in good faith without knowing that the one from whom he receives it is not the owner.
    Appeal from circuit court, Erie county.
    Action by Theroh Hovey against Charles Bromley for conversion. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    George E Towne, for appellant
    J. M. Congdon, for respondent.
   LEWIS, J.

This action was commenced in justice’s court to • . recover damages for the alleged wrongful conversion by the defendant of a mule, the property of the plaintiff. The answer was a general denial. Plaintiff recovered a verdict of $60 in the justice’s court. An appeal was taken from the judgment to the county court of Erie county, where the case was retried. The court charged the jury that the only question for them to determine was the value of the mule. To this ruling the defendant duly excepted. The jury rendered a verdict for the plaintiff for $55 damages.

There was evidence tending to show the following facts: The plaintiff was the owner of two mule teams, and on the 18th of July, 1892, he put them to work upon the railroad, at a distance of about 10 miles from his home. He hired one Hopson to drive and care for one team, known as the “large mules,” and one Prentice to drive and care for the other, known as the “small mules.” The plaintiff arranged a place for the drivers and teams to board, and returned to his home. The driver Hopson, on the 1st day of August, went to the home of the plaintiff with one of the large mules, leaving the other one in the barn, in charge of Prentice. The defendant was also working upon the railroad with two of his own teams. He boarded at the same house with plaintiff’s teamsters. One of his horses having a sore neck, he hired of Prentice the large mule left in the barn, to work with his horse. He worked him during the forenoon of the 2d of August, and in the afternoon of that day the mule became lame and sick, and lay down, and refused to work. The defendant sent word to Prentice that the mule was sick, and during the afternoon he cared for and doctored the animal. Prentice sent word to the plaintiff. The plaintiff arrived in the evening of that day, and found the mule lying upon the grass, unable to get up. He took charge of the mule, administered to him remedies, and, with the help of the defendant, on the morning of the 3d of August, drew him to the barn, where he died during the day. The evidence tended to show that the mule was carefully used by the defendant, and that nothing that he did with him in any manner contributed to his sickness or death. The defendant did not know that the plaintiff owned, or had any interest in, the mule. He supposed it belonged to Prentice. The latter had no right to allow defendant to use the animal. The trial court held, upon these facts, that as a matter of law the defendant had converted the mule, and was liable for its value. We fail to find in these facts evidence of conversion. Having received him from Prentice in good faith, in ignorance of his want of title, before the defendant could be made liable for conversion a demand and refusal were necessary. Defendant was not shown to have made any claim or to have exercised any dominion over the animal to.the exclusion of the plaintiff’s rights. No intentional wrong on the part of the defendant was proven. When the plaintiff arrived, he took possession of his property, and remained in possession until it died. It will appear from an examination of the authorities to which we are "referred by the respondent’s counsel that such purchasers were either shown to have exercised dominion over the property to the exclusion of the true owner, or to have disposed of it so that it could not be returned to the owner, or to have been guilty of some tortious act in reference to it. It was held in the case of Plano Manuf’g Co. v. Northern Pac. Elevator Co., 51 Minn. 167, 53 N. W. 202, that to maintain trover against one who received property in good faith, ignorant of the want of title of the one from whom he received it, a demand and refusal must be shown. The mere purchase of goods from one who did not own them, and has no right to sell them, does not constitute conversion, unless the buyer afterwards refuse to return them to the owner on demand, or has converted them to his own use, so that he cannot return them if requested. Valentine v. Duff (Ind. App.) 34 N. E. 453. If one purchase stolen goods in good faith, a demand and refusal «are necessary to establish conversion. If, however, the goods be sold by such purchaser, no demand would be necessary. The act of selling would, in such a case, constitute the conversion. The purpose of the demand is to turn an otherwise lawful possession into an unlawful one. Pease v. Smith, 61 N. Y. 477. If one in possession of property as the apparent owner sell it to another, trover does not lie in favor of the true owner against the purchaser, unless the latter assume dominion over the property after notice of the plaintiff’s title. An intention must be shown on the part of the defendant to take to himself the property in the goods, or to deprive the owner thereof. Parker v. Middlebrook, 24 Conn. 207; 2 Hil. Torts, 97.

If the plaintiff "had made a case showing a conversion of the property, still this judgment should not be allowed to stand, for the reason that the damages are excessive. There is nothing in the case tending to show that the use of the mule by the defendant in any way tended to its sickness or death. The evidence was that he was kindly and properly used by the defendant, and without any apparent cause he became sick and died; and yet, with this evidence undisputed, the jury found a verdict for $55 damages. The plaintiff’s witnesses, it is true, testified that the mule was worth even more than the amount of the verdict, but they obviously based their opinion as to value upon the assumption that the mule, when it came in the defendant’s possession, was well. They must have assumed that its use by the defendant in some way caused its death. Such an assumption was not justified by the facts. Had the plaintiff established a technical conversion, he was not entitled to recover anything more than his actual damages, which, under the circumstances, were nominal. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.  