majority">Paine, J.

The claim of the appellant, that the instructions given to the jury were erroneous, is based *323upon the position that, under the pleadings, the only-issue was whether the defendant ever received the securities. And he contended that it was incompetent for the defendant to deny ever having received them, and at the same time to say that, if he did receive them, they were lost without his fault.

I can see no good reason why the defendant may not deny both of the allegations of the complaint. It is true, that if he succeeds on the first denial, and shows that he never did receive the property, the other ques: tion does not arise. But he might possibly be mistaken as to whether he had received them. And, if he was, the fact of his being driven from that line of defense is no reason why he should be deprived of all right to make any further defense at all.

The evidence in this case very clearly illustrates the necessity of this rule. There can be no doubt that the defendant denied the reception of the property in the utmost good, faith. The proof certainly tends very strongly to confirm his statements in that respect. The improbability of depositing so large an amount of securities as collateral to so small a loan; the entire uncertainty of the plaintiff as to where the notes were, as revealed by his statements to Hough and Newman, that he had lost them, that he had hunted all over his house for them and could not find them, and that he had looked at Stoughton, where he “ supposed he might have left themall this tends to show that the defendant did not deny having received this property without very strong reasons for denying it.

But if, contrary to the obvious force of the evidence, he was mistaken after all — if he, too, as well as the plaintiff, forgot about it — still, if the subsequent facts were such as to relieve him from liability, why should he not be permitted to claim the exemption % It would certainly be visiting a severe punishment upon a defend ant to say, that because he had unsuccessfully contested *324one of the material allegations of the complaint, therefore he should be estopped from contesting any of the others.

Were the pleadings such as to put in issne any thing except the question whether the securities were ever received? I think they were. It is true, the answer admits the demand, and that the defendant did not deliver — showing at the same time that the refusal was put upon the ground that he did not then have, and never had, the property. But the allegation in the complaint of a conversion of the property by the defendant is denied. That is the material allegation. A demand and refusal to deliver are not a conversion. They are only evidence of it. If, at the time of such demand and refusal, the property was not in the defendant’ s possession, but had been lost, notwithstanding he had bestowed upon it all the care which the law required of him under the circumstances, then there was no conversion, and he was not liable.

Now, upon the assumption that he had‘once received the property, the questions, whether it still remained in his possession at the time of the demand, and whether,, if not, it had been lost without fault on his part, were both questions which would necessarily arise in determining whether there was any conversion. And the allegation of a conversion on the one part, with the denial of it on the other, is sufficient to admit the proof upon these points.

It is true, the plaintiff might establish a prima facie case, by showing the property to have been received by the defendant, and a demand and refusal to deliver. And this was doubtless all that the court below meant in giving the jury the second instruction asked by the plaintiff, which the plaintiff’s counsel now claims to have been in conflict with those subsequently given at the request of the defendant. But when, in this instruction, the court told the jury that” it was “not neces*325sary for the plaintiff to show any want of care on the part of the defendant, or to show that the property was lost through the negligence of the defendant — that the demand and refusal was enough’ ’ — it had reference to what was necessary for the plaintiff in the first instance, to establish a prima facie case. With that interpretation, there is no repugnance between this and the instructions subsequently given for the defendant. Otherwise, there would be.

For the court proceeded to tell the jury that, if the property was received by the defendant as collateral to a loan, and was not converted by him, but was lost notwithstanding the exercise of ordinary care on his part, he would not be liable; and that, if it was a gratuitous deposit for safe-keeping merely, and was lost, the defendant would not be liable, unless guilty- of gross negligence. Both of these propositions were correct; and, if the third instruction asked by the plaintiff, and given, was in any degree in conflict with the right of the defendant to have these questions submitted to the jury, it was an error against the defendant, of which the plaintiff cannot complain. Upon the whole evidence, he had the right to have it submitted to the jury, whether, even if he had received these securities, he had not deposited them with Flint & Turner, whose safe was the most secure place to which he had access, and thus exercised all the care and prudence that the law required.

There is little doubt, upon the evidence, that the jury found for the defendant upon the ground that he never received the securities at all. But, as there was no special verdict showing that fact, it became necessary to examine the questions already discussed. I think there was no error of which the plaintiff can complain, and that the judgment should be affirmed.

By the Court. — Judgment affirmed.

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