Butler v. Wolf Sussman, Inc. - 221 Ind. 47, 46 N.E.2d 243 (1943)

Rule:

Replevin will not lie for property lawfully in the possession of another until a proper demand has been made for its delivery. This rule is based upon the presumption which the law indulges that one who has lawfully come into possession of property which he is not entitled to retain will, upon demand, surrender it to the person entitled thereto and that he ought to be afforded an opportunity as to do without being subjected to the inconvenience and expense of a lawsuit. The rule stated has been so applied as to require a demand, where a defendant is an innocent purchaser for value and without notice from one who was a wrongful taker or was without authority to sell.

Facts:

Plaintiff wife Butler inherited a diamond ring from her mother. Afterwards, she got married and lived with her husband for 13 years. They were not divorced, but the husband had since disappeared. While packing her possessions at the time of the separation, plaintiff missed her ring. Thus, she made a demand for it upon her husband and threatened to sue him, but her husband told her that he had pledged the ring as his own to appellee Wolf Sussman, Inc., a licensed pawnbroker for a loan of $25, which was afterwards increased to $35. This was without the prior knowledge of the plaintiff. She then filed a complaint for replevin of the ring and conversion. The trial court entered judgment in favor of the appellee on the grounds that the plaintiff had not made a demand for the ring, and under § 32 of the Pawnbrokers Act of 1935. Plaintiff appealed.

Issue:

Did the trial court correctly rule in favor of appellee pawnbroker in plaintiff’s action to replevin?

Answer:

No.

Conclusion:

The court reversed the judgment. The court held that appellee waived the necessity for a demand by claiming title to the ring in controversy over the asserted ownership of the plaintiff. Moreover, the court further held that § 32 of the Pawnbrokers Act violated the due process provisions of the state and federal constitutions. The court then remanded the case for a new trial.