De Young v. Frank A. Andrews Co.
Massachusetts Supreme Judicial Court
Tort for the alleged conversion of two diamonds. Writ in the Municipal Court of the City of Boston dated March 11, 1911. On appeal to the Superior Court the case was heard by Irwin, J., without a jury. It appeared that sometime in August, 1910, the defendant, a corporation, having a customer who desired to purchase two matched diamonds, requested the plaintiff, a diamond broker, to procure for it diamonds to be submitted to its customer.
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Tort for the alleged conversion of two diamonds. Writ in the Municipal Court of the City of Boston dated March 11, 1911. On appeal to the Superior Court the case was heard by Irwin, J., without a jury. It appeared that sometime in August, 1910, the defendant, a corporation, having a customer who desired to purchase two matched diamonds, requested the plaintiff, a diamond broker, to procure for it diamonds to be submitted to its customer. The plaintiff thereafter brought the diamonds in question to the defendant’s place of business. Thereafter the defendant submitted the diamonds to its…
1Opinion of the CourtHammond, J.
When the plaintiff relies upon demand and refusal as independent and basic evidence of conversion, it must appear that at the time of the demand and refusal the defendant had the control of the article so as to be able to comply with the demand; and the burden of proving all this is upon the plaintiff. Lord Ellenborough in Smith v. Young, 1 Camp. 439, 441. 2 Greenl. on Ev. 644, and cases cited. See also Johnson v. Couillard, 4 Allen, 446; Gilmore v. Newton, 9 Allen, 171. The fifth instruction should have been given.
We are therefore compelled to sustain the exceptions, even if there was…
2Cited by32 opinions
- Kaufmann v. SydemanMassachusetts Supreme Judicial Court · 1925
- Commonwealth v. AlbertMassachusetts Supreme Judicial Court · 1942
- Edinburg v. Allen-Squire Co.Massachusetts Supreme Judicial Court · 1938
- Bousquet v. Mack Motor Truck Co.Massachusetts Supreme Judicial Court · 1929
- Magaw v. BealsMassachusetts Supreme Judicial Court · 1930
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