ALLEN v. SMITH

ALLEN v. SMITH
1918 OK 451
174 P. 280
70 Okla. 292
Case Number: 9079
Decided: 07/30/1918
Supreme Court of Oklahoma

ALLEN et al.
v.
SMITH.

Syllabus

¶0 Trover and Conversion--Right of Action -- Demand.
In an action for damages for wrongful conversion demand is not a necessary prerequisite to the commencement of the action, where the act of conversion has been consummated and demand would be a useless act.

Error from District Court, Coal County: J. H. Linebaugh, Judge.

Action for conversion by J. T. Smith against O. T. Allen and Bowen Bros. From an order overruling their demurrer to plaintiff's evidence, defendants bring error. Affirmed.

J. H. Cruthis and Malcolm E. Rosser, for plaintiffs in error.
W. H. Hulsey, for defendant in error.

PRYOR, C.

¶1 This is an action brought by J. T. Smith, defendant in error, against J. H. Bowen, J. L. Bowen, L. B. Bowen, and O. T. Allen, plaintiffs in error, for the conversion of 15 head of cattle. At the close of the plaintiff's evidence, the defendants interposed a demurrer thereto, on the specific ground that the evidence did not show that any demand for the cattle had been made on defendant Allen before the institution of suit. This demurrer was overruled, and the ruling of the trial court on this demurrer is the only question before this court. The defendants the Bowen Bros. pleaded in their answer that they had purchased the cattle in controversy from defendant Allen, and asked that in the event plaintiff should prevail they have judgment against the defendant Allen for the amount plaintiff was adjudged entitled to. The evidence conclusively shows that Allen had sold the cattle to the Bowens before the commencement of this action. There was trial to a jury and judgment rendered for plaintiff, from which judgment the defendants appeal.

¶2 It is a well-recognized principle of law that demand in an action for wrongful conversion is not necessary, where the act of conversion had been accomplished before the commencement of action, and that demand would be a futile and useless act. Bank of Commerce v. Gaskill, 44 Okla. 728, 145 P. 1131; Bilby v. Jones, 39 Okla. 613, 136 P. 414.

¶3 As demand of Allen for the possession of the cattle was not necessary, the trial court properly overruled the demurrer of the defendant challenging the sufficiency of the evidence on this ground. As the sufficiency of the evidence was not properly challenged on the other issues, it must be held that the evidence is sufficient to sustain the verdict of the jury.

¶4 Therefore the judgment of the trial court should be affirmed.