Atwood

This is an action of trover to recover damages for the conversion of certain boxes of apples which plaintiff had delivered to defendant, a warehouseman, for storage in the latter’s warehouse at San Bernardino. Judgment passed for plaintiff. Defendant appeals from the judgment and from the order denying his motion for a new trial—a nonappealable order.

The complaint alleges that plaintiff is the owner of the boxes of apples and entitled to their possession; that he demanded possession thereof from defendant hut that the latter failed and refused to deliver the same, and that defendant unlawfully converted the property to its own use. These allegations are denied by the answer. The trial court found plaintiff’s averments to be true, save that the number of boxes converted by defendant is not so great as the complaint alleges.

Appellant claims that the evidence is insufficient to justify the finding that plaintiff made demand before suit, and also the finding of conversion by defendant. [1] It must be conceded that a demand by plaintiff before suit and a refusal by defendant were necessary to the maintenance of this action for conversion, for the apples came into defendant’s…