The following facts touching the vital question in this case were proved on the trial: Some time before the 23d day of November, 1878, the appellant left a horse and certain scavenger machines for safe keeping with the rer spondent, as an innkeeper, with whom he also boarded at different times, and on that day he tendered to the respondent the sum of $90 as his charges .thereon for such safe keeping and board, and demanded the property, and the respondent claimed that such charges were $123, and refused to deliver the same without the full payment thereof. After-wards the respondent notified the appellant to come and take away his property, and the appellant came on the 17th day of December following and took away the horse, and promised that he would take away the machines the nest day, but he did not come, and the respondent 'called upon him on the 23d, and the appellant said the reason he did not come, as he promised, to take away the machines, was that he had been sick and unable to do so, and that he would come as soon as he got well. The parties again met on the 30th, and the appellant said he had been worse and could not *596come, but that be would come in a day or two and take away tbe property, but be did not come until tbe 6tb day of January, 1819, and then said be bad not got tbe $90 with bim, but would come tbe nest day and bring tbe money, but be did not come until two days afterwards, and then the respondent again told the appellant that if be would pay tbe $90 be could take away the property, and be again agreed to do so, but asked tbe respondent if he might then take away a certain part of one of tbe machines, and tbe respondent consented that be might do so if be would live up to tbe terms to pay tbe $90, and be took tbe same away and promised to come and pay tbe $90 and take away tbe remainder of tbe machines that afternoon. But tbe appellant did not come again until tbe 13th of January, and then respondent offered to take the $90 and give to tbe appellant a receipt in full and deliver up the machines if tbe appellant would give a like receipt, and tbe appellant refused so to do, and nothing further occurred in respect to tbe matter until this suit was brought. At this last interview no tender of tbe money or demand of tbe property was made. There was no evidence of tbe actual conversion of tbe property to tbe respondent’s use, and the question of conversion depended entirely upon tbe presumption arising from his refusal to deliver on demand, and there was no proof of any demand except that on tbe 23d of November, 1818.
If there can be a case in which such a conversion is waived by tbe subsequent conduct of the parties, this is certainly such a case. (1) There was an offer on tbe part of tbe respondent to debver tbe property unconditionally on the terms fixed by the appellant, which in itself waived it (Hayward v. Seaward, 1 Moore & S., 459; 1 Add. on Torts, § 472), and made a future demand necessary before suit; (2) this offer to deliver was repeated several times, and was prevented by the negligence and sickness of tbe appellant, and by no fault of tbe respondent; (3) tbe appellant took away part of tbe *597property in two instances by the consent of the respondent, when he was nnable at the time to pay the $90 which he had admitted was a lawful charge upon it; and (4) there was an agreement or understanding between the parties that the residue of the property should be delivered and the $90 paid, and the appellent prevented the performance of it by his refusal to give a receipt in full on account of the property. It may be that such a receipt could not properly have been exacted according to the law in its strictness (Add. on Torts, § 472); yet when in view of the negotiations and relative situation of the parties, and of apprehended or threatened litigation in respect to the property and the respondent’s charges upon it, such an exaction might have been reasonable in the judgment of the jury, to whom the whole matter of this future arrangement and the offer to carry it out by the respondent was properly left by the charge of the court, as well as the question whether the presumptive conversion of the property by the first demand and refusal to deliver had not been waived by the subsequent conduct or agreement of the parties. The jury must be presumed to have found that such presumptive conversion had been waived on all the grounds above enumerated, and it was proper in the first instance to leave the question with them, although in this case it was so clearly waived that even a verdict against it would not have been conclusive and ought to be reversed. Winterbottom v. Morehouse, 4 Gray, 332, and other cases cited in respondent’s brief.
The circuit judge, in charging the jury that a demand and refusal to deliver “ were not in themselves an actual conversion, but only evidence of it ” (and this was the effect of the instruction), committed no error. 1 Add. on Torts, § 529. The appellant having properly failed in his suit by failure to prove a conversion of the property, no other matter treated in the respective briefs of counsel need be considered.
By the Go%vrt. — The judgment of the circuit court is affirmed.