READ THIS CASE AND COMPLETE THIS EXERCISE BEFORE ORIENTATION. COME PREPARED TO DISCUSS THE CASE. YOU WILL NOT TURN IN THIS STRUCTURED READING EXERCISE; IT IS SOLELY FOR YOUR OWN BENEFIT. THE ANNOTATED CASE FOLLOWS THIS STRUCTURED READING EXERCISE. AN ORIGINAL COPY OF THE CASE IS ALSO INCLUDED.

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Structured Reading Exercise Johnson v. Weedman, 5 Ill. 495, 4 Scam. 495, 1843 WL 4116 (Ill.) Torts - Conversion

Vocabulary and legal terminology from Black’s Law Dictionary: (10th ed. 2014)

Action on the case

See trespass on the case. (15c)1 At common law, an action to recover damages that are not the immediate result of a wrongful act but rather a later consequence. • The lawsuit was instituted by a writ of trespass on the case. It was the precursor to a variety of modern-day tort claims, including negligence, nuisance, and business torts. — Often shortened to case. — Also termed action on the case; breve de transgressione super casum.

Agister

(15c) Someone who takes and pastures grazing animals for a fee; a person engaged in the business of agistment. • An agister is a type of bailee for hire. — Also spelled agistor.

Assumpsit

(16c) 1. An express or implied promise, not under seal, by which one person undertakes to do some act or pay something to another <an assumpsit to pay a debt>. 2. A common-law action for breach of such a promise or for breach of a contract <the creditor's assumpsit against the debtor>.

Bailee

(16c) 1. Someone who receives personal property from another, and has possession of but not title to the property. • A bailee is responsible for keeping the property safe until it is returned to the owner. 2. Someone who by warehouse receipt, bill of lading, or other document of title acknowledges possession of goods and contracts to deliver them. See BAILMENT.

Bailment

16c) 1. A delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose, usu. under an express or implied-in-fact contract. • Unlike a sale or gift of personal property, a bailment involves a change in possession but not in title. Cf. PAWN.

1 The parenthetical indicates the origin date of the word or phrase defined. So, “15c” means the word or phrase arose in the 15th century.

Chattel

(14c) Movable or transferable property; personal property; esp., a physical object capable of manual delivery and not the subject matter of real property.

Conversion

2. Tort & criminal law. The wrongful possession or disposition of another's property as if it were one's own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another's right, whereby that other person is deprived of the use and possession of the property. — convert, vb. — conversionary, adj.

Smart money

(1926) 1. Funds held by sophisticated, usu. large investors who are considered capable of minimizing risks and maximizing profits <the smart money has now left this market>. 2. See punitive damages under DAMAGES <although the jury awarded only $7,000 in actual damages, it also awarded $500,000 in smart money>.

Trover

(16c) A common-law action for the recovery of damages for the conversion of personal property, the damages generally being measured by the property's value. — Also termed trover and conversion. Cf. DETINUE; REPLEVIN.

Writ of error

1. A writ issued by an appellate court directing a lower court to deliver the record in the case for review. Cf. ASSIGNMENT OF ERROR.

Pre-Reading Questions Before you begin reading, skim the caption, the headnotes, and the synopsis and answer the following questions:

1. What is the case name? Who are the parties? How many parties on each side? Individuals or corporations? __________________________________________________________________________________

2. Is the case in federal or state court? Which court? What year? __________________________________________________________________________________

3. Who owned the horse? __________________________________________________________________________________

4. When did the horse die? __________________________________________________________________________________

5. When is an agister (someone who cares for animals for a fee) liable for the death of a horse? __________________________________________________________________________________

6. What was the jury verdict in the case below? __________________________________________________________________________________

7. Who made the motion for a new trial? What was the result of that motion? __________________________________________________________________________________

8. Why did the defendant have possession of the plaintiff’s horse? __________________________________________________________________________________

9. What did the defendant do with/to the horse? __________________________________________________________________________________

10. Who was the lawyer for the defendant? __________________________________________________________________________________

11. According to the defendant’s lawyer, what harm did the plaintiff’s horse suffer BECAUSE OF defendant’s actions? __________________________________________________________________________________

Reading the Case With a general idea of the case in mind, you can now read the opinion. As you read and after you finish reading, answer the following questions:

1. The first paragraph of the opinion describes the procedural posture. What happened at the trial court level? __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

2. The second paragraph of the opinion summarizes the facts in one long sentence. Rewrite the facts in 3 short sentences, using your own words: __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________________________________________________________________

3. The Supreme Court of Illinois resolves two questions in this case. List them below. You may use your own words, but keep each issue in the form of a question: __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

4. The court answers both questions. These are the holdings. What is the one-word answer to each issue question? __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

5. The court then lays out the legal rule of “conversion.” What are the elements of the tort of conversion? The following questions will help you parse the elements of conversion:

a. IF a bailee for one purpose uses the owner’s property for ________________ purpose without ___________________ from the owner, THEN:

b. the bailee is ____________________ for conversion; BUT ONLY IF: c. the bailee’s use of the property _________________ damage to the property THEN: d. the owner of the property can recover damages from the __________________ use

and cannot recover the ____________________ value of the property, IF: e. the __________________________ is returned.

6. The court applies this rule to the facts of Johnson’s case. What is the key fact the court relies on in its ruling that the defendant is not liable for conversion? What rule element outlined above does this key fact relate to?

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

7. The second issue in the case is whether plaintiff deserves a new trial. In the second-to-last paragraph of the case, the court explains a rule about when courts will grant new trials. What is the rule?

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

8. Why does the court refuse to grant a new trial?

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

9. The last sentence of the opinion disposes of the case. How does the Supreme Court of Illinois resolve this case?

__________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

10. Is there a dissenting opinion in this case? Is there a concurring opinion?

______________________________________________________________________________________

Johnson v Weedman Sample Brief Now comes the easy part. Use the answers to the questions above to fill out the chart. This is one possible method for a case brief.

Case Johnson (plaintiff dead horse owner) v. Weedman (defendant horse rider and possible horse converter)

Court/Year Illinois Supreme Court, 1843

Facts Plaintiff bails horse to D (left D to care for horse); D rode horse w/out permission; horse dies, but not because of riding; D cannot return horse to plaintiff.

Procedural Posture

Jury Trial; Defendant not guilty; P moved for new trial (denied), Judgment for defendant; P appeals.

Issues 1. Is P entitled to recover for conversion of his horse?

2. Should the trial judge have granted a new trial?

Holdings: 1. No, P not entitled to recover for conversion where there was no evidence of damage

from his conversion

2. No new trial where only nominal damages may be won

Rules:

1. Conversion = IF (i) bailee for special purpose; (ii) uses property for another purpose; (iii) without bailor’s permission; THEN (iv) liable for conversion; SO LONG AS (v) such use causes injury/damage; THEN (vi) measure of damages is the damage/injury, not value of property; IF (7) property is returned.

2. No new trial if only nominal damages are recoverable.

Analysis

1. Horse died w/out fault of D. Not in consequence of the riding. Because use was “without detriment” the use is not conversion. Use was wrong but not conversion. Might support some other claim (assumpsit).

2. Unauthorized use can only constitute a conversion allowing recovery of nominal damages; no new trial where only nominal damages available.

Conclusion D wins on both counts

Concurrence or Dissent

None.

Johnson v. Weedman Supreme Court of Illinois, at Springfield

December, 1843, Decided

No Number in Original  

Reporter 5 Ill. 495; 1843 Ill. LEXIS 70; 4 Scam. 495

ADREW JOHNSON v. JOHN WEEDMAN.

Prior History: [**1] Error to De Witt.

THE proceedings in this cause in the court below were had before the Hon. SAMUEL H. TREAT; but at what term, the agreed case does not show. The jury found the defendant not guilty. A motion was made for a new trial, which was overruled, and a judgment rendered for the defendant for costs. The cause was brought to this court by writ of error, and submitted upon briefs.

Disposition: Judgment affirmed.

Case Summary Procedural Posture

Plaintiff owner sought review of a judgment of a trial court (Illinois), which found defendant bailee not guilty in a trover action for a horse, denied the owner's motion for a new trial, and rendered judgment for the bailee for costs.

Overview

The owner bailed a horse to the bailee to be agisted and fed for a valuable consideration. While the horse was in the bailee's possession, and without the owner's authority, the bailee rode the horse 15 miles. The horse died within a few hours afterwards, but not in consequence of the riding. In affirming, the court held that the owner was not entitled to recover. While the bailee might not have had a right to use the horse, such use did not amount to a conversion because the use was without detriment. Another form of action would have been better adapted to adjust the real rights of the parties. A new trial should not have been granted because even if the owner would have been entitled to recover, a new trial might have been refused as

This tells you where and when the lawsuit took place. The U.S. common law system depends on court hierarchy, so this information is important.

A Reporter is a series of books, ordered by volume, containing judicial opinions AND editorial remarks written by the editors. Reporters used to be named for the editors who compiled and published the opinions. Now, reporters are generally named by state and region. But editors of reports still add comments to opinions.

This case is in two reporters, the Illinois Reports (Ill.) and the Scamihorn reporter (Scam.). The case is also available electronically on Lexis (Ill. LEXIS).

This is the case name. The plaintiff is usually listed first. So Andrew Johnson is suing John Weedman. Notice there is a typo in the word "Andrew." Sometimes computer publishers make mistakes so it can be important to check the original source of the opinion.

This tells you that the opinion you are about to read is an appeal from a trial court in De Witt county, Illinois.

All of this text was written by editors. It is not law. The case summary, headnotes, and syllabus are meant to help you get a sense of the case before reading the opinion. But only the opinion, written by the judge, is the law.

This is what you’ll see when you look up a case on Lexis Advance.

This is the title, or caption of the case

the only damages sought was for the wrongful use, which must have been vindictive damages.

Outcome

The court affirmed the judgment, with costs.

LexisNexis® Headnotes

Civil Procedure > Judgments > Relief From Judgments > Motions for New Trials

HN1 Courts will not grant new trials, where vindictive damages only are sought to be recovered, or merely nominal damages.

Headnotes/Syllabus  

Headnotes

1. BAILMENT--wrongful use of property. If a bailee for a special purpose use the property for another purpose, without leave of the owner, he is liable as for a conversion; yet this should be understood only of such an use as occasions an injury or damage; and that damage or injury, and not the value of the property, would be the measure of damages to be recovered, if the property be returned. Where no injury is sustained only nominal damages can be recovered. a

2. SAME--no injury. Such use of property by a bailee, as is without detriment to the bailor; does no amount to a conversion. 3. SAME. Where a horse was delivered by the plaintiff to the defendant, to be agisted and fed, for a valuable consideration, and the defendant, without the authority of plaintiff, rode the horse fifteen miles, and the horse died a few hours afterwards, but not in consequence of the riding: Held, that the plaintiff could not sustain an action for trover and conversion. b

4. NEW TRIAL--vindictive damages. Courts will not grant new trials where vindictive damages only, or merely nominal damages, are sought to be recovered. c

Counsel: WELLS COTTON, for the plaintiff in error; Weedman being bailee of the horse, for a special purpose, to wit, agistment, was guilty of a conversion in using him without leave. What is a conversion? See 6 Bac. Abr. 677,

This section summarizes the plaintiff’s arguments.

Still text written by editors – not a Judge.

691, last paragraph; Reynolds v. Shuter, 5 Cowen 323; Whelock v. Wheelwright, 5 Mass. 104; Bristol v. Burt, 7 Johns. 258.

Conversion may be temporary or permanent. Keyworth v. Hill et ux. 5 Eng. Com. Law R. 422.

Change of property is only made by a judgment for a permanent conversion. Brown v. Sax, 7 Cowen 97.

A return of the property converted goes in mitigation of damages. 6 Bac. Abr. 680, 690, last paragraph,--in D, 708, last paragraph but one; Reynolds v. Shuter, 5 Cowen, 323.

The above points, made to establish the position of the plaintiff [**2] are that the taking of the horse of the plaintiff from the pasture, and putting him to defendant's use, constitute a complete conversion, on which an action could be sustained. If the horse had been returned, the action would still lie, and the return would be in mitigation of damages. As he never was returned, the verdict should have been for the plaintiff, to the amount of the horse's value, when converted; and the instruction that the defendant was entitled to a verdict, unless it "appears the horse died through bad usage," was erroneous.

A demand need not be made by the plaintiff to maintain suit, even where the original possession of the defendant was lawful, if an actual conversion be proved. Refusalon demand is only evidence of conversion, and not in itself a conversion. 6 Bac. Abr. 706, fifth paragraph, letter G; Tompkins v. Haile, 3 Wend. 407.

If the case shows a conversion, the verdict was clearly contrary to evidence, and there should be a new trial.

6 Bac. Abr. 662, states: "It is the general rule that if the verdict be contrary to evidence, the court will grant a new trial," citing Strange 1106, 1142; 2 Tidd's Pract. 908; 3 Barn. & Ald. 692; 3 Bing. 610; 4 Bing. [**3] 195; 1 Caines 25, and note.

A. LINCOLN, for the defendant in error: 1. The riding of the horse was not such an abuse of the lawful possession as amounts to a conversion; and,

2. If the riding was a conversion, the injury done by the riding, and not the value of the horse,is the measure of damages. Murray v. Barling, 10 Johns. 176.

This section summarizes the defendant’s arguments. This is still text written by editors.

Still text written by editors – not a Judge.

In the latter case it is said: "as if a man takes my horse to ride, and leaves it at an inn, that is a conversion; for though I may have him by sending for him, and paying for his keeping, yet it brings a charge upon me. It is this charge that is to regulate the damages."

3. Though the riding of the horse may be a conversion, still, as it did no injury to the horse, the damage can but be nominal; and after verdict, a new trial is never allowed to enable a plaintiff, to recover nominal damages merely. 2 Cowen, 483, last sentence of the opinion; 3 Johns. 239; 10 Wend. 119.

Judges: SCATES, Justice.

Opinion by: SCATES

Opinion

[*496] SCATES, Justice, delivered the opinion of the court: Trover for a horse; issue not guilty; trial and verdict not guilty. The plaintiff moved for a new trial, which the court denied, and rendered a judgment for costs. [**4] The agreed case shows the following facts; That the plaintiff bailed a horse to the defendant to be agisted and fed, for a valuable consideration; that while the horse was so in the defendant's possession, and without the plaintiff's authority, he rode the horse fifteen miles; that the horse died within a few hours afterwards, but not in consequence of the riding. And the cause is submitted for the opinion of the court upon two questions:

First. Is the plaintiff entitled to recover upon the facts stated? and,

[*497] Secondly. Ought a new trial to have been granted?

In answer to the first point, we say he is not. While we admit that if a ballet for a special purpose, as he is here, viz. agistment and feeding, use the property for another purpose, without leave of the owner, he is liable as for a conversion, and, as is laid down in the books, for assuming and exercising ownership over the goods. 6 Bac. Abr. 667, 691; 5 Cowen, 323; 5 Mass. 104; 7 Johns. 258; yet it should be understood only of such an use as occasions an injury or damage, as is said in Murray v. Burling, 10 Johns. 174; 6 Modern 212; 6 East 540; [**5] and that damage or injury, and not the value of the property, would be the measure of damages, to be recovered, if the property be returned. Here it is admitted

This is where the opinion begins. The judge deciding the case writes the opinion.

This tells you what judge wrote the opinion.

This is the procedural posture. The narrative facts as to how the case came to this court.

These are the facts of the case.

Here are the two issues the court will decide in this case.

This paragraph contains the legal rules governing the first issue and the court’s analysis and reasoning in its resolution of the first issue.

that no damage was done, or injury sustained, unless the law deemed the use a conversion; in which case nominal damages only could be recovered. The horse died, and therefore could not be returned, but without fault of the defendant, as it was not in consequence of the riding. If the doctrine of the books is to be literally understood, that any and every use, by the bailee, not falling strictly within the terms of the bailment, is a conversion, the mere temporary exercise of the animal for his own health and improvement, might, in like manner, be charged as a temporary conversion, subject to be made permanent, and the right of property changed into the defendant by a judgment, or if the defendant could and would return the property, the damages are mitigated by the amount of the value of the property, as is laid down in 6 Bac. Abr. 680, 690, D 708; 5 Cowen 323. So that finally the party would recover only the true damages, which, in this case, could be nothing, as there was no evidence of actual damage. No demand [**6] and refusal was necessary in this case, as the plaintiff does not seek to recover the value of the horse, but only the supposed damage, for an illegal use of the horse. I would by no means be understood as saying that the defendant had a right, or that it was proper to use the horse, but only that, that use, in this instance, being without detriment, does not amount to a conversion. Another form of action would be better adapted to adjust the real rights of the parties. Peradventure in an action of assumpsit for the use of the horse, the value of his services might be recovered, or in a special action on the case, on the bailment.

In answer to the second question, we answer also in the negative. Even if the plaintiff should be entitled to recover, still a new trial might have been refused, as the value of the horse is not sought by the proof; the only damages that could be recovered would be in the nature of smart money, for the wrongful use, which must be in their nature vindictive, as there is no proof of special damage or injury. And it is a rule that HN1 courts [*498] will not grant new trials, where vindictive damages only are sought to be recovered, or merely nominal damages. [**7] 2 Cowen 433; 3 Johns. 239; 10 Wend. 119.The judgment is affirmed with costs.

Judgment affirmed. Footnotes

a In action against bailee for negligence whereby ballot lost chattel bailed, return of chattel uninjured before suit goes in mitigation of damages, which are confined to actual

This paragraph contains the legal rules governing the second issue and the court’s analysis and reasoning as to that issue.

This is the conclusion. What the court actually did to resolve the lawsuit.

You’ll notice that these footnotes refer back to the headnotes. Remember, the headnotes are not part of the opinion, and neither are these footnotes. They were written by editors.

loss. American Express Co. v. Brunswick 4 Bradw. 606, 610.

b Where bailment, e. g. of horse, is gratuitous and for bailee's benefit, he is bound to extraordinary care. Phillips v. Condon, 14 Ill. 84.

c New trial will not be granted merely to enable party to recover vindictive or nominal damages. Comstock v. Brosseau, 65 Ill. 39, 44.