On appeal from a judgment of the Second District Court of Jersey City.
For the appellant, Samuel Kobren and Alexander Seclow.
For the respondent, Morris Edelstein and Samuel Cooper.
Before Justices Lloyd, Case and Donges.
The opinion of the court was delivered by
DONGES, J. This is an appeal from a judgment of the Second District Court of Jersey City in favor of the plaintiff, Potash Stores, Incorporated, against the defendant, Bay Development Corporation, in an action in trover and conversion.
The state of demand alleged ownership of certain chattels by the plaintiff; a casual passing of the possession of the goods into the hands of the defendants; demand and refusal of their return to plaintiff; an actual conversion of the goods by the defendants, and disposal thereof.
The facts shown at the trial were that the defendant leased a store at No. 71 Jackson avenue, Jersey City, to one Isadore Potash who apparently conducted a hardware business therein. There was a sum owing defendant for rent and in the year 1936 this claim was reduced to judgment. At that time the hardware business was being conducted in No. 79 Jackson avenue. It was plaintiff's claim that this business was being operated by the plaintiff corporation; that it owned all of the stock and fixtures and that Isadore Potash had no interest therein. Execution was issued against Isadore Potash out of the Bayonne District Court. Nathan Schulman, a sergeant-at-arms of that court, who was originally a defendant herein but as to whom a voluntary nonsuit was taken, made a levy on certain goods at 79 Jackson avenue as the property of Isadore Potash on July 15th, 1936. He was subsequently informed that the goods levied upon were not those of Isadore Potash but were the property of the plaintiff herein, Potash Stores, Incorporated, a corporation. There were then negotiations for the payment of the judgment against Isadore Potash which did not eventuate in settlement, and the result was that on August 10th, 1936, after advertisement, the sergeant-at-arms sold "all the right, title and interest of Isadore Potash in the articles enumerated for $25" to one Pauline Berger, who was apparently an agent of the defendant herein. There was never any attempt by the defendant or by the officer of the court to take possession of the chattels levied upon, nor was there any such attempt by the purchaser
of Potash's interest after the sale. The goods remained in the possession of the plaintiff at all times up to the time of the trial below.
The question then is, was there a conversion of the chattels by the defendant such as to give plaintiff a cause of action against it? In Baude v. Chemical Bank and Trust Co., 115 N.J.L. 120, it was said: "The present action is manifestly one of trover. The quoted averment of conversion is from the old precedents. 2 Chit. Pl. 835, 837. The gist of the action is conversion, and conversion implies possession -- by finding, according to the old fiction, but any physical possession will suffice, lawful or unlawful, though treated as lawful in the old forms. Possession, however, there must have been."
In Woodside v. Adams, 40 N.J.L. 417, it was held: "To constitute a conversion of goods there must be some repudiation by the defendant of the owner's right, or some exercise of dominion over them by him inconsistent with such right, or some act done which has the effect of destroying or changing the quality of the chattel."
Mr. Justice Dixon said in Frome v. Dennis, 45 N.J.L. 515, after reviewing the English cases: "It is apparent, I think, from a perusal of these judgments, that every judge based his opinion of the defendant's guilt on the question whether he had done any act which amounted to a repudiation of the plaintiff's title, or to an exercise of dominion, i.e., ownership over the goods. Less than this would ...