This is an action for damages for the conversion by the defendant of certain cypress and pine logs alleged to have been severed from lands owned by the plaintiff. There are two counts to the declaration. The first charges the defendant with converting to its own use and wrongfully depriving the plaintiff of the use and possession of the logs. The second count charges the defendant with "wrongfully and willfully" taking possession of the logs and converting them to its own use.
The defendant pleaded not guilty and the parties went to trial on the issue raised by that plea. By that plea the conversion of the logs by the defendant was put in issue. See Stewart v. Mills,
No question of the title to the property was involved.
None of the logs cut from the plaintiff's land were shown by the evidence to have come into possession of the defendant except those which were delivered and sold on May 6, 1931, to the defendant at its log boom in Palatka by Newman who was an independent logger and who bought lands or logging rights from others in his logging operations. The logs which were sold to the defendant were taken by Newman in his independent operations from land which he believed he had acquired from the owner. He was, therefore, an unintentional trespasser and cut the logs and removed them through mistake as to the ownership of the land. *Page 849
When the logs were floated down the river and brought by him to the defendant's boom at Palatka, the defendant's agent, who negotiated with Newman for the purchase of the logs, believing that the logs came from land which the agent believed was owned by the defendant, deducted the stumpage charge from the price agreed to be paid to Newman for the logs.
It was later discovered that the logs were taken in fact from land owned by the plaintiff. In that transaction the defendant was, therefore, an innocent vendee of an unintentional trespasser.
The defendant does not deny the plaintiff's right to the property and there was no evidence of a conversion of it by the defendant to its own use. The logs were in the boom where they were brought by Newman.
Any elementary treatise on the law of torts informs the reader that at common law there were four actions for the wrongful taking or detention of the personal property of another. Those forms of action are "trespass de bonisasportatis," replevin, detinue and trover. Those actions differed one from another not only in the elements of the wrongful act complained of but also in the result sought to be obtained. The action of trover, technically trover for conversion, which is the action brought in this case, is a remedy to recover the value of personal chattels converted by another to his own use. The remedy has not changed since the days of Lord Mansfield. See Cooper v. Chitty, 1 Burrow's (Eng.) 20.
Indeed no necessity in the so-called complex relations of an intricate industrial age and semi-communistic policy has arisen for any change. The form of action supposes the defendant may have come lawfully by the possession of the goods. In the case at bar there is neither in the form *Page 850 of action chosen nor the evidence adduced by the parties the vaguest suspicion that the defendant came by the possession of the logs in any other than a lawful manner. Therefore, if the defendant had delivered the logs to the plaintiff on demand there could have been no recovery in this action for the taking of them, but no demand was made.
The word "conversion" is a technical expression as used in the law of torts. It does not mean that there has been a change in form of the thing taken, but it means that the defendant has exercised a wrongful dominion or control over the property in violation of the plaintiff's rights. See Burroughs v. Bayne, 5 H. N. 296 (Eng.).
To constitute a conversion the act must be such as to indicate an assertion of ownership or title or a right of control or dominion over the property adversely to the owner. There is evidence of nothing of that sort in this case. Newman brought the logs to the defendant's boom. There the defendant bought them from Newman. The defendant's agent, believing that the logs came from the land owned by the Company, deducted from the price agreed to be paid the stumpage charge. There the logs remained, and continued to remain there after the discovery that they came from the plaintiff's land. What else could the defendant have done but allow them to lie in its boom? The defendant could not pick them out of the boom and deliver them into the hands of the plaintiff. There is no evidence that the defendant's intention with regard to the logs was inconsistent with or in violation of the plaintiff's right.
A demand by the plaintiff upon the defendant for the thing alleged to have been converted and a refusal to comply with the demand was necessary to show a conversion of the logs by the defendant.
The true significance therefore of proof of a demand *Page 851 and refusal is that it is evidence but evidence only of a conversion. In this case the conversion was not attempted to be shown by any other evidence and there was no demand on the defendant for a return of the property. See a discussion of the subject in Castle, v. Corn Exchange Bank, 75 Hun. 89 (N.Y.); Burroughes v. Bayne, supra.
I therefore think that the judgment should be reversed.
