The following opinion was filed at the January term, 1874.
Cole, J.On the motion for a rehearing, it is claimed that we were wrong in holding under the complaint, which states a cause of action for logs sold and delivered by the plaintiff, that there could be a recovery for the logs which were sold and delivered to the defendants by Cover, even if the evidence conclusively showed that the logs which Cover delivered belonged to the plaintiff. Eor it is said, if the plaintiff did really own these logs, then they were wrongfully taken by Cover and sold to the defendants, and the plaintiff’s remedy is by an action of trespass or trover to recover their value; or, if the logs have been converted by the defendants, he may waive the tort, affirm the sale, and sue on contract and recover the proceeds. All the evidence in regard to the sale and delivery of what may be described as the Cover logs was received on the trial without objection, and without any suggestion that there was any technical difficulty in the way of recovering their value under the complaint. Under these circumstances, if the proof showed that these logs belonged to the plaintiff, the court should have ordered an amendment of the complaint, if necessary, in order to obviate any technical objection which might exist to recovering their value in this action. It is said there was no evidence of a conversion of these logs by the defendants, or that they had sold them and received the money for them. There was ample testimony that the defendants claimed these logs as their own. They insisted that they had purchased them of Cover and paid for them, and that the plaintiff did not own them and had no interest in them. If this was not evidence of con-, version — this exercising acts of ownership over the logs, and *50denying the plaintiff’s property in them —it is difficult to understand what would be evidence of that fact. “A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.” 2 Greenl. Ev., sec. 642. And this fact of the assumption of the property in the logs and the right to dispose of them as their own, which the defendants have insisted upon for a long time, as the proof shows, and now put forward to defeat the plaintiff’s claim, is of itself evidence of conversion. About this, it seems to us, there can be no doubt.
But it is said that the plaintiff has made no demand for this property, and that he could not recover its value except upon such demand and a refusal to deliver. It is an established fact, however, that the plaintiff has demanded payment for these logs, and that the defendants refused to pay him for them because they had paid Cover. A demand for the specific property would have been of no avail under the circumstances. Moreover, in the case of Norden v. Jones, 33 Wis., 600, this court adopted the rule that no party is bound to sue in tort, where, by converting the action into one on contract, the rights of the defendant are not prejudiced. It is surely more favorable to the defendants for the plaintiff to waive his claim for damages for the conversion, and recover only the value of the property ; and it is certainly in accordance with the reason and principle of Norden v. Jones to hold the demand of payment for the logs .all that it was necessary to make.
There are really no exceptions in. this record which raise any ■of these questions so fully discussed upon the motion for a rehearing, except as they are involved in the refusal of the court t© give the last two requests asked on the part of the defend:ants. In the former opinion, it was said that these instructions 'were objectionable because they ignored the question whether *51the plaintiff was owner of the logs delivered by Cover. There is still a further objection to the third instruction, that it assumes that this lot of logs was delivered by Cover, and that the plaintiff did not deliver the entire quantity claimed in the complaint. The question, by whom these logs were sold and delivered, was one in controversy, and upon which conflicting testimony was given. The fourth request was, that as this action was one upon express contract for goods sold and delivered by the plaintiff, there could be no recovery if the evidence showed that the defendants purchased them of Cover. "We have already said, if it appeared that the plaintiff was the real owner of the logs, and that Cover wrongfully sold them to the defendants, who have had the use and enjoyment of the property, that the plaintiff might waive the tort and recover the value thereof in this action. If there was any technical objection to a recovery under the complaint as it now stands, as all the proof in respect to the transaction was admitted without objection,, the complaint should have been amended. But the fourth request was in direct conflict with the doctrine of the Norden case, and there was no error in refusing to give it to the jury.
It is further insisted that the damages are excessive, even after the amount remitted by the plaintiff. The evidence is not very satisfactory upon this point. The defendants claim that they should have credit for some items- — -such as boom-age— which the plaintiff insists they agreed to pay themselves under the contract. The jury might have credited the testimony of the plaintiff, that the agreement was, that the defendants were to gather up the logs at their own expense, and were to take what was back, after passing through the boom, at their expense. Rejecting the items for booming expenses, which the jury might have found that the defendants were to pay, and allowing interest upon the balance due the plaintiff from January 1, 1868, to the time of trial, there would be an excess of about $11.16.
We have concluded to deny the motion for a rehearing, *52and. to allow the judgment of affirmance to stand, upon the plaintiff’s remitting $11.16, and paying costs of this court on the appeal.
By the Court. — It is so ordered.