Donlin v. McQuade

Champlin, J.

Plaintiff brought trover against defendant, and showed that, in 1884, the defendant was the proprietor of the Detroit Roller Skating Rink, and on the last night the defendant’s'rink was open for the season of 1884, plaintiff left his skates with defendant by delivering them to Mr. McConnell, whom defendant had in charge of the skating-room at his rink, and received from him a check for said skates, as was done on previous occasions, and as was the custom with patrons of the rink; that he thereafter went and demanded his skates from the defendant, and presented his check therefor ; that defendant stated that he did not have them, — that the skates were not there and he could not give them to him, ■but he could have them if they were there; afterwards plaintiff demanded the value of the skates, and defendant said they were not there; that defendant caused search to be made for the skates, and afterwards said he had not got them, because he could not find them.

After proving the value of the skates plaintiff rested.

Defendant testified in his own behalf that he recollected •the plaintiff calling on him for the skates; that he looked over all the skates he had, and Mr. Donlin’s were not among them.; that he knew Mr. Donlin’s skates, as they had Donlin’s name stamped on them, and so told Dqnlin they were not there, — that if they were, Donlin could have them.

Upon this testimony the circuit judge directed a verdict for the defendant.

*278 This was error.

The defendant was bailee of the property, and under the-circumstances it was his duty to preserve the property, and deliver it to the bailor on presentation of tire check and demand therefor. His neglect to do so, simply for the reason that he could not find it, was a conversion for which the action of trover will lie.

The judgment must be reversed, and a new trial ordered..

The other Justices concurred.