[ 1 ] The plaintiffs assignor installed certain fixtures in premises leased by the defendants to one Covert. The fixtures were installed under a conditional bill of sale, and the title to the property was at all times vested in the plaintiff’s assignor. Covert failed to pay the rent, and when he ceased to be the defendants’ tenant he left at least part of the fixtures in defendants’ premises. The plaintiff claims that he demanded the fixtures from the defendants in March, 1912, and that the defendants refused to give them up. If this be true, then the defendants’ refusal constituted a conversion of such fixtures as Covert left in their premises. The defendants do not really deny that a demand was made on them, but there is some question as to whether the demand was made in behalf of the plaintiff, or in behalf of the assignor. In my opinion, however, this point is immaterial. The defendants admit that the tenant left certain fixtures in the premises, and they admit that they sold part of these fixtures for the sum of $65, and still have the remainder. The sale of part of the fixtures undoubtedly constituted a conversion of the fixtures sold, regardless of any demand, and the trial justice correctly so charged. In view of all the circumstances, I think that it also cannot be doubted that the sale of a part of the fixtures constituted such an assumption of dominion over all the fixtures left by the tenant as to constitute a conversion even as to the part unsold.
[2] The sole questions in the case, therefore, are: What fixtures were left in the premises by the tenant? and what was their value? The defendants’ janitor testified that he found only seven articles in the premises after the tenant left, and he sold three of these articles for the sum of $65. The plaintiff produced testimony showing a value for even these seven articles of several hundred dollars. In spite of this testimony, the jury found a verdict of only $65. Assuming that the jury believed the defendants’ testimony, and found that the tenant left only seven articles, and that the price of $65, at which three of the articles were sold, constituted their fair and reasonable value, the plaintiff was still entitled to damages for the other articles, which the defendants still retain. The jury’s verdict can be explained only upon the assumption that they did not understand the actual issues and is founded upon a palpable mistake.
Judgment should therefore be reversed, and a new trial ordered, with $30 costs to the appellant to abide the event.
FINCH, J., concurs.