McClelland v. Nichols

Under a denial of each and every allegation of a complaint in an action for the conversion of personal property, the defendant, on the trial, has the right to introduce any evidence reasonably tending to show in himself a right of possession to the property at the time of the alleged conversion. Prior to the offer of “Exhibit A” in evidence, and its exclusion by the court, some evidence had been introduced reasonably tending to establish the following facts: That the property mentioned in the complaint was identical with that referred to in the agreement alluded to or contained in the exhibit; that the jjossession of such jsroperty was obtained from the defendants Nichols, Shepard & Co. by the plaintiff, and his rights in respect thereto were held under that agreement; that the note contained in the exhibit was given by him in part payment for the purchase of the property; that the same was past due at the time of the alleged conversion; that prior payment thereof had been demanded and refused; and that the possession taken by the defendants Nichols, Shepard & Co., through their agent, the defendant Wedge, which constitutes the conversion complained of, was under a claim of right founded upon the agreement, and made known at the time.

*179If, then, by the terms of the agreement, as indicated by the exhibit, the title to the property was in the defendants Nichols, Shepard & Co., together with the right then to take possession thereof under the terms of the agreement, the exhibit was clearly competent evidence under the issue, and its rej ection by the court was error, calling for a new trial. As indicated by the exhibit, the sale of the thresher to the plaintiff, by the defendants Nichols, Shepard & Co., was a conditional one, containing an express stipulation that “the title, ownership and possession of the property should not pass from them until the note therein referred to, with interest, was paid in full.” Under this stipulation of the agreement both the title and right of possession remained with them until payment of the note. If this provision was qualified by the subsequent clause, to-wit, “that the said Nichols, Shepard & Co. has full power to declare this note due, and take possession of said thresher at any time he may deem himself insecure, even before the maturity of the note,” so as to give plaintiff the right to take and keep possession until Nichols, Shepard & Co. might deem themselves insecure, still the latter, no doubt, upon the occurrence of such contingency, had the right to retake possession, (Ballard v. Burgett, 40 N. Y. 314,) and the refusal of plaintiff to pay the note after maturity, upon demand, was certainly strong if not conclusive evidence that they did, in fact, and in good faith, deem themselves insecure at the time they took possession, in this instance-.. The exhibit should have been teceived in evidence. The judgment of the court below is reversed, and a new trial granted.