Trover is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value of whatever was taken, not for the recovery of the property itself (see replevin).
Trover actions frequently concerned the finding of lost property. It could also involve cargo on ships, such as those lost at sea and later found. Trover often involved cases in which the "most correct" owner could be determined. For instance, if an envelope of bank notes or currency were to be found, the court would attempt to identify the true owner. Often this would prove to be impossible. In that case, the finder would be the next best owner and be considered the possessor. Trover cases have been described as "finders keepers, losers weepers" cases.
Trover damages came to be measured by the market value of the object, not necessarily its replacement cost if it were new. Sometimes, compensation for deprivation of use and compensation for other losses naturally and proximately caused by the wrongful taking could be added. Case law results are mixed. The plaintiff could also recover interest that would have been earned by the money value of the object and any expense (except attorney's fees) incurred in attempting to recover the object. If the taker sold the object for more than its market value, the plaintiff could receive the higher price. However, selling the chattel could change the action to that of a true conversion (law) which was a form of theft. If the taker had made improvements on the object (e.g., repainted it), the value of such improvements are not deducted from the plaintiff's recovery unless the taking was by mistake. Early trover cases involved the keeping or taking of a bailment by the bailee (the person charged to hold them with "ordinary care"). Others concerned the use of lost chattels found by another. Who was the real owner? Early on, there was difficulty in dealing with situations where chattels held by a bailee were used by a third party. Examples could be sheep, horses, farm goods, grains or other chattels left in the care of a person who was required to engender ordinary care. If negligence led to damages, an action could be had. A third person might use the chattel, returning it in a damaged condition. The early common law had some difficulty in dealing with this kind of situation. This led to expansions of actions in trover. Although actions in trover can be traced to the time of Bracton, and later Edward I of England, it became more clearly defined later during the reign of Henry VI of England, 1422-1461 and 1470-1471. Action in trover became a mature legal doctrine during the reign of Elizabeth I of England, 1558-1603.
Trespass and trover were both actions founded upon possession. For many centuries, they were alternative remedies for the wrongful taking of, or damage to chattels. There was a distinction between the actions. In the theory of trespass, the plaintiff remained the owner of the chattel, with the possession or property rights interrupted or interfered with. In this case, the plaintiff must accept the chattel back when it was tendered. Recovery was limited to any damage to the chattel, or from the interruption of property rights. The theory of trover was that the defendant, by "converting" the chattel to his own use, had appropriated the plaintiff's property, for which he was required to make compensation. The plaintiff was not required to accept the chattel when it was tendered back to him. He could recover damages for the full value of the chattel at the time and place of conversion. The effect was that the defendant was compelled to buy the chattel at a forced sale, carried out by means of an action in trover.
In the time of Bracton, despite the generality of the writ, the bailor of a chattel could only bring this action against the bailee of the chattel, or those who represent the bailee by testate or intestate succession. Only two actions were available. The plaintiff could claim, "I lost the goods and you found them."; or "I bailed the chattel to you." The first of these was called detinue sur trover This was the new found haliday of Littleton.
There is some evidence that the action had been used in the generation following Bracton during the reign of Edward I of England. In earlier times, the finder who did not take the witness of his neighbors that he had honestly found the chattel was at risk of an actio furti.
In those days, action in detinue sur trover could not lie against a third party. If a person bailed his chattels to another, and that bailee wrongfully gave, sold or bailed the chattels to a third party, the only action was against the original bailee. Liability to the third bailee was not transferable. In later times, lawyers would talk of trover and bailment. In 1292, there was a slight tendency to regard the detainer rather than the bailment as the gist of the action. where is was stated "it is not enough to say, 'you did not bail to me' [in defense], but one must add, 'and I do not detain it [use of the chattel] from you.'" But there are other later cases which show that it is impossible or at least extremely difficult for the bailor to fashion any count that will avail him against the third party. The third party was called the "third hand".
Sir William Holdsworth described trover as an extension of detinue, which enabled not only a bailor and a dispossessed owner, but also a third person, to whose use goods had been bailed, to get full recognition of their interests.
In colonial America, replevin was used more often than detinue. In England the scope of replevin was usually limited to action in distress (where a chattel had been taken by a person who intended to hold it as a bargaining chip to force some action by the true owner).
By the end of the seventeenth century, the great bulk of litigation in England was conducted through the various forms of action which had developed from trespass. This remained the case until the nineteenth century, when these kinds of forms of action were abolished in succession by statute. By 1875, all remaining forms had been replaced by a single form uniform writ whereby the plaintiff endorses the statement for a claim. By that time, the change was purely procedural, but it also freed the substantive law from the old medieval forms of action. It permitted the development of broad concepts, such as libility in tort which could never have come about when confined by the old forms of action, such as trover. This served to rationalize the law. Just as forms of assumpsit replaced debt, so in the seventeenth century trover replaced detinue.
In the reign of Edward IV of England, the question arose whether a charter relating to land could be recovered by detinue in view of the fact that it had no value.
During the fifteenth century the plea of "detinue sur trover" gave rise to a special form of action of detinue, which came to be distinguished from the action of trespass on the case and its companion, trespass on the case sur trover. After a time, the latter became known simply as "trover". Littleton called the plea "per inventionem, sur trover, a new found halliday." This remark by Littleton probably only applied to the simpler form of the new pleading, which made it unnecessary to allege by what means the chattel had come into the hands of the defedant. It was not really the novelty of the action, but the fact that it streamlined the old writs by-passing the details of possession by the bailee or finder of the chattel.
For a time during the fifteenth century, the common law courts seemed to draw a real distinction between the counts Detinue sur trover and detinue sur bailment. A bailment occurs when there is an agreement for someone to transport or keep a chattel. The normal rule was that "ordinary" care was necessary to protect the chattel while it was in the custody of the bailee. The former was a wrongful detention and a tortious wrong. The latter a wrong based on the agreement between the parties.
Trover has been described as an action in assumpsit which arose from the quare writs by adding the "cum" (Latin: "with") which, then could allege that the defendant undertook (assumpsit, "assumed the risk", or "assumed the duty"), to do something. Another clause which followed some time later contained the allegation of trover, and deals with situations which involved neither bailment nor a trespassory taking. In Bracton's day the appeal of larceny could be changed into an action de re adirata by omitting the words of felony. By this means a chattel could be recovered against a finder. If the finder refused in court to restore the chattel as "adirata", the plaintiff could refile the claim ("claims afresh"), this time adding the word felony, indicating the action was for a real theft, and conversion.
Actions of this kind were common in the manorial courts, but an obscure note in a Year Book suggests that in 1294 detinue could be brought against a finder of a chattel. Cases of lost cattle had their own law, and never fit into the forms of trover. Detinue against the finder of a charter seems to have found its way into the common law by 1389.
Charters, like stray cattle, had their own law with peculiar features, and these actions dealt primarily with executors who withheld the heir's title deeds which came into the their hands (devenerunt ad manus) with the ancestor's chattels. In 1455 Littleton explained the "new found haliday" which consisted in counting upon the finding (invencio) instead of the traditional devenerunt.
The proccupation of detinue with the two special cases of stray cattle and lost title-deeds persisted, and the general problem of recovering chattels which had neither been stolen or bailed was only solved with a new form of writ. This was invented by adding a novel preamble to be inserted in the writ "ostensurus quare". This preamble alleged tha the plaintiff casually lost possession of the chattel, that the defendant had found it, refused to restore it and converted it to his own use. The full development of trover and conversion is seen by 1510. A discussion of more modern cases of a bailee (holder) in possession of a title-deed is found in Columbia Law Review.
In 1585, Edward Coke was reluctant to allow the principle of conversion to be extended so as to enable detinue to be largely superseded by trover on the case. Coke laid down the first principles applicable to conversion (law). He pointed out that the finder had acquired the goods which were in no danger of being lost, there was earlier authority for saying that an action for trespass could be sustained and that non-delivery constituted conversions. Consequently, the wrongful refusal to deliver on demand because evidence of a conversion, and this, after some vacillation is now the law. It was a rivalry between the various courts developing legal systems of the country which gave an impetus to the growth of the more modern remedies.
Trover became the accepted action for all wrongs to chattels. In the case of Cooper v. Chitty (see infra), Lord Mansfield said, "In form, trover is a fiction; in substance a remedy to recover the value of personal chattels wrongly converted by another to his own use. The form supposes a defendant may have come lawfully by the possession of the goods." The fiction was the allegation that the finding in trover was an accident. It was the plaintiff who wanted return of the chattel, which had been converted to the use of the defendant.
In 1479, the remedy was extended to cover the destruction of the chattel by the possessor. The court allowed the action arising out of a bailment of a box containing some silver fixtures. It was alleged that the box had been broken open and the silver converted. The plaintiff could not recover the thing bailed, because it was destroyed. This was the first known case in which the words, "converted to his own use" (Latin: "convert a son oeps") were used. Judge Brian said,"and I take it for clear law that he could not have action on the case if he can recover the thing intself." Notice the similarity to the fact patterns seen in cases of "breaking the bail".
The medieval conception of wrongs to chattels was based upon a physical interference with possession. This was inherent in an age when keeping the peace was the primary concern of law, and a right of a third party was foreign to it. Originally, trover was based on an infringement of possession other than trespass. All that was necessary for the medieval judge to decide the case was to determine who had the better right to claim a chattel, not necessarily the best right.
The opinion in this case was that mere damage to a chattel was not a good claim in trover.
Asportation of the chattel (illegally transporting the chattel) which was followed by the loss of a chattel, was held not to support an action in trover.
In the 1841 case of Fouldes v. Willoughby, a ferryman was sued for conversion by the owner of two horses which he had put on board to be carried across a river. The ferryman subsequently refused to carry them, and when the owner declined to take them back on shore, the ferryman turned them loose on the landing place. The owner remained aboard the ferry. He made no attempt to retrieve his horses, which were subsequently lost to him. It was argued that this was an interference with the possession of the horses, and would be a trespass. It was a mere asportation without any conversion or interference with rights of ownership, since the action in putting the horses ashore had recognized the right owner. Consequently, the court held that trover was not an appropriate remedy. This was a signal case which brought into sharp distinction the alternate theories of trespass and trover. Trespass was the appropriate action, but it was not a conversion. This case was decided two years before the case of Johnson v. Weedman (see infra) in which Abraham Lincoln successfully argued that a bailee who rode a horse for 15 miles had not incurred enough damage to invoke an action in trover. This case was likely a precedent to Johnson v. Weedman.
In Tinker v. Poole Lord Mansfield overcame the technical objections (traditionally held) that a distress (holding of a chattel to induce an action from the owner) was not a disposition of goods, and that trover could be an alternative to replevin. This was a controversial opinion at the time, and was not necessarily viewed as legitimate stare decisis.
A person who purchases personal property from one not authorized to sell the chattel may be held liable for the conversion of the article. This is regardless of the fact that the purchaser was honestly mistaken, or acted innocently, in good faith and without knowledge of the seller's lack of authority to make the sale. This rule also holds in cases where the purchaser takes possession of the goods, mixes them with his own property, holds them to his own use, refuses to surrender possession on demand, disposes of the goods to a third person by sale, lease or bailment or in general exercises rights of ownership as to the property purchased in denial of the real owner's rights after knowledge of the rights of the true owner. (Extensive case law reviewed.)
In the 1887 case of Deaderick v. Oalds , the Supreme Court of Tennessee ruled on a case of trover. The plaintiff, Deaderick cut 800 walnut logs, branded them with the letter "D", then proceeded to float them down a river with the intention of recovering them downstream. The defendant Oalds claimed an unmarked log on an island owned by Deaderick in the river. Oalds identified it by a peculiar set of cracks in the end of the log. Deaderick claimed the log was his in trover or replevin. The Tennessee court quoted the English case of Bridges v. Hawkesworth where the plaintiff, being in the shop of the defendant, picked up a parcel containing bank notes. The defendant, at the request of the finder, took charge of the notes, to hold for the owner. After three years, no one had come forth to claim them. The defendant shop owner refused to deliver them to the plaintiff. The court held the defendant shop owner liable in trover for the notes.
The Tennessee Supreme Court observed it is essential in cases of trover, that the property must be found; it must at the time when the finder came upon it, to have been in such a situation as to clearly indicate that is was lost. It cannot have been voluntarily placed by the owner who lost it by carelessness or forgetfulness, where it was later found by someone else. In such cases, the owner of the property is treated as a quasi-bailee, and he may maintain trover against the finder. The log was not intentionally laid by the owner on the land of the plaintiff, and hence he was not a quasi-bailee for the owner, and cannot hold against the superior right of the defendant growing out of his prior possession and earlier finding of the log. Judgment for ownership of the log is to the defendant Oalds.
In the Georgia case of Berry v. Jackson, Recovery of property converted may be allowed in an action of trover where such is statutorily defined.
The 1843 Illinois case of Johnson v. Weedman was argued by a young Abraham Lincoln. The case was somewhat similar to the case of Fouldes v. Willoughby, which had been decided two years earlier. It may have been taken as precedent in this present case. (see supra). A horse had been left in bailment for proper care. The bailee who was in possession of the horse rode it for 15 miles. There was no demonstrable damage to the horse. Lincoln convinced the court that there could be no action for damages. There was not enough evidence for the bailee to be held liable for a conversion, or for an action in trover. There had been no significant invasion of the owner's rights. The Illinois court agreed, and Lincoln won the day.
In the 1939 Texas case, the court encountered the same facts as in Zaslow v. Kroenert, except the defendant stored the furniture in his own name with the intent to keep it for himself. This was ruled to be a conversion.
In the 1905 case of McCurdy v. Wallblom Furniture & Carpet Co., the Minnesota court encountered the same fact situation as in Zaslow v. Kroenert, except that while the furniture was in the warehouse, and before the plaintiff could remove it, it was destroyed by a fire. This was ruled to be a conversion.
Typical case patterns in quasi-trover are reviewed.
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