¶1Hall acquired actual possession of the property in question by delivery from Arnold, the owner, under an implied undertaking to advance by way of loan to Arnold the sum of $50. His original possession, therefore, was lawful. Hall failed to make the loan; upon this, Arnold was entitled to be restored to the possession of his property; but until Hall was guilty of some tortious act, in reference to the property, there was no conversion. The evidence showed that Hall failed to make the loan and did not restore the property to Arnold — and remarked that he had notgot it. Whether he had disposed of it, while he was absent a few minutes apparently for the purpose of raising the money to make the loan, or whether he then had it in his possession, was not shown; Arnold did not know, nor understand what he meant, when he informed him that he could not let him have the money, and that he had not got the property. This evidence fell far short of showing any tortious act. It did not show that Hall had either disposed of, or destroyed the property. Until a wrongful detention after a demand and refusal was shown, there was no evidence of a conversion. Arnold made no demand, and there being no disposition or destruction of the property by Hall shown, his possession continued lawful, until Arnold sold the property to Robinson, and Hall detained it after demand by him. The judgment should be affirmed.
¶2I do not deem it necessary, in this case, to determine whether Arnold might or might not have treated the fraudulent conduct of Hall as a conversion of the watch in question. For admitting that he might, and that he could, before selling the watch, have sustained an action of trover therefor in his own name, still he was not bound to do so. He had *296 a perfect right either to reclaim or sell the property. It is true he could not transfer to Robinson a mere right of action, so as to enable him to bring trover in his own name, founded upon evidence of a conversion while Arnold was the owner of the watch. Arnold did not pretend to sell any such right of action. He sold the watch itself, and in such form as to pass a good title thereto to Robinson. After that purchase Robinson had a right to take the property from Hall; or he might, as he did in this case, demand it of him, and upon his refusal to deliver it up, without a sufficient excuse, treat such refusal as a conversion, and bring trover for it in his own name.
¶3The case of Gardner v. Adams, (12 Wend. 297,) was cited by the defendant's counsel to show that the action could not be maintained in the name of Robinson. It does not clearly appear from the report of that case whether the demand and refusal was before or after Adams became the assignee of the mortgage upon the property in question. If it was after the assignment, I think the decision cannot be upheld either upon principle or authority.(a)
¶4In this case, as there was a sale of the watch to Robinson, and a subsequent demand of it made upon the defendant, and a refusal by him to deliver it, Robinson had a right to treat such demand and refusal as evidence of a conversion of the watch after he became the owner of it, and bring an action therefor in his own name.
¶5The judgment should be affirmed.
¶6Judgment affirmed.¹