Tsuru v. Bayer

Citations

• 25 Haw. 693
• 1920 Haw. LEXIS 4

Syllabus

<p>Trover and Conversion — demand when necessary.</p> <p>In actions of trover the general rule recognized by all of the authorities is that where the original taking is lawful and there has been no illegal assumption of ownership or illegal user a demand and refusal, must be shown as evidence of a disposition to convert to the holder’s own use or to divest the true owner of his property.</p> <p>Same — demand when not necessary.</p> <p>Where the taking itself is wrongful or where there is an illegal assumption of ownership or an illegal user a demand and refusal need not be proved.</p> <p>Same — conversion defined.</p> <p>Any distinct act of dominion wrongfully exerted over one’s property in denial of his right or inconsistent with it is a conversion.</p> <p>Same — trover and replevin distinguished.</p> <p>In the common law action of trover the plaintiff seeks solely the recovery of damages for the conversion of his property and the action is thus distinguishable from an action of replevin in which the primary relief sought is recovery of the specific property in question though by statute damages based on the value of the property, if its return cannot be obtained, may be recovered.</p> <p>Same — effect of return or offer to return property.</p> <p>As a general rule an offer to return property wrongfully converted is not admissible even in mitigation of damages, but where the conversion is technical, inadvertent or the result of a mistake and the property is still in status quo an offer to return it may be shown in mitigation of damages.</p> <p>Same — measure of damages.</p> <p>In this class of cases the measure of damages ordinarily would be the fair reasonable value of the property at the time of the conversion. If the plaintiff has accepted the return of the property this would not bar an action for conversion but would mitigate the damages and fix the measure thereof at the reasonable value of the property at the time of the conversion less its value when return