
    Giustino De Benedictxs vs. Nelson Lind
    No. 40595
    November 26, 1918
    For palintiff: Fitzgerald & Higgins.
    For defendant: H. D. Glendinning.
   DECISION

TANNER, P. J.

This is an action of trover to recover the value of an automobile truck alleged to have been eonerted by the defendant.

The plaintiff let the defendant have the truck for the purpose of repairing it and putting in a new motor. This the defendant did and received a portion of the value of his work and materials furnished.

Defendant had pleaded a general issue and also specially that he claimed a lien upon the truck for the full value of the work done and materials furnished, and that no tender of the amount due had been made. This plea was traversed by the plaintiff.

It is clear from the testimony, that no legal tender was made of the balance due. -. The plaintiff, however, contends that the defendant converted the truck by using it for his own purposes after having repaired it. The evidence of use is very meagre. We do not think, however, that a reasonable use of the truck after the plaintiff declined to pay what was due amounts to a conversion.

28th Am. & Eng. Ency. of Law, 2nd ed page 696, Note 3.

Under such circumstances we think the defendant might reasonably use the truck in return for storing and taking care of it.

Decision for the defendant.  