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Elements Fall 2008


Part 1: Self Help

Butler v. Wolf Sussman, Inc.
Butler v. Wolf Susman Inc.- Major points of legal reasoning within the case: The interpretation of the statute by the courts mainly the pawn broker statute and the Married Women’s Act

Statement of case: This is an action for replevin and conversion of a diamond ring by an owner with superior possessory rights, against a licensed pawnbroker for a right that was taken and pawned by claimant’s husband without consent.

Procedure: The complaint was on three counts: 2 for replevin and 1 conversion. The defendant answered a general denial. The appellate waived her entitlement for a judgment on the pleadings by going to trial on the merits of the allegations. In the bench trial the judge awarded judgment to the defendant and the plaintiff took nothing. Plaintiff appeals. Questions on this issue: Why would the plaintiff waive her rights for judgment? Why would the defendant answer in general denial when it would allow the plaintiff to win on pleadings?
Both answers have to do with potential statutory/precedent interpretation claims. The plaintiff might have waived her right to recover from the pleadings in order to challenge the Pawnbrokers statute, he may have plead in general denial in order to get around such a challenge.

Conversion- suit for the wrongful deprivation of property for which one can receive only the value of said property

Replevin- suit for the return of wrongfully deprived property

Possible action for Detinue- the action if the item was not wrongfully taken but if it was wrongfully detained from being returned to the property owner at

Statement of Facts: The Appellant inherited the right in 1920 from her mother. She afterwards married and lived with her husband for 13 years; separating from him on January 8, 1940. They are not divorced, but the husband’s location is unknown.
After the separation she noticed the ring was missing and made a demand on her husband, with the threat of suit, for the return of the ring. He presented a ticket to her disclosing that on November 18, 1938, he had pledged the ring as his own to Wolf Sussman, a licensed pawnbroker, for a loan of $25, which was increased to $35. This was without the prior knowledge of Mrs. Butler.
Mrs. Butler appeals the denial of the motion for a new trial. During the appeal, the pawnbroker argues that no demand was made for the return of the ring which is mandatory in a commencement of action for replevin (this would save the courts time and money if the wrongful detainer merely returns the ring without need for a trial) and that the owner of the ring cannot recover according to the current statute protecting Pawnbrokers.

Issue: Did the trial court err in not allowing the motion for a new trial? Was the trial court’s judgment contrary to law?

Holding: Narrow: Demand was unnecessary when by pleading or proof the defendant was attempting to establish title in the item himself. Broad: Also, the Married Woman’s Act allows a wife to own property of her own thereby constituting that the ring could have been stolen by her estranged husband and so it probably can be said that the Pawnbrokers Act will not stand.

Doctrinal: A Demand is necessary to prevent unnecessary litigation, however, since the defendant claimed possession, a demand is not needed because he would not have complied with the demand.

Policy: When two statutes contradict each other the court must choose the relevant law and interpret. If the interpretation is not done correctly or in a way in which the upper level courts see fit then a new trial should be granted.

➢ Defendant filed a replevy bond with an affidavit, he contested the suit on its merits, and he filed for protection under the Pawnbroker’s Act. Which of these is enough to waive demand?
➢ Since a defendant, sued without demand, may offer to disclaim interest in the property upon reimbursement for costs incurred, any affirmative action on his part calculated to establish title in himself, whether by pleading or proof, ought to waive a demand.
➢ b. Section 32 of Chapter 195, acts of 1935 gives licensed Pawnbrokers a first lien on all articles pledged to them expect where the pledge or possession thereof by the pledger constituted larceny at the common law level. Although, common law states that a husband cannot commit larceny against his wife, there is a statute that claims wives may hold personal property, therefore the husband could be held criminally liable for larceny.

Exceptions to the Pawnbrokers Act are: larceny and prior lien by another statute
➢ Can a husband commit larceny on his wife? Under 1881 Act a woman can hold property. The larceny question depends on the state and the couple’s custom→ need further discovery.
Policy: The conflicting rights between the pawnbroker’s statute and the 1881 statute force the court to choose between these statutes using one of the statutes of construction as a means of interpretation.
➢ Constitutionality of the Statue?
o Courts normally like to avoid such claims. Statute only unconstitutional as applied to this case: conflict with the 1881 statute.
➢ Repelvin: an action for the repossession of personal property wrongfully taken or detained by the defendant, where the plaintiff hold the property until judgment is rendered on ownership. One must prove unlawful taking, deprivation of possession, but not ownership. Gives the option to return item or pay its worth. Must be the owner v. possessor.
➢ Conversion: The act of changing something from one form to another, or the wrongful disposition or possession of one’s property as if it were his own.
➢ Lien: Legal right or interest that a creditor has in another’s property until a debt is settled.
➢ Redelivery Bond: Act for restitution, or the return of something.
➢ Detinue: Appropriate action if the item was not wrongfully taken against one’s will but if it was wrongfully detained afterwards; you can et the item back if they have it, if not, get damages.
o Did not use this theory because she wanted the ring and not money

→ What are the mistakes?
1) Butler should have asked for summary judgment based on the defendant’s general denial in his answer.
a. Butler may have deliberately failed to ask for s/j to test the constitutionality of the 1881 statute.
2) Butler should have made a demand prior to filing her complaint.
3) Sussman was in error by pleading a general denial
4) Sussman was in error for filing a redelivery bond, this waived the right of demand.
5) Sussman may have done this purposefully to avoid trial.

→ Situational Context of this case…
1) Why suing the pawnbroker and not her husband directly? Judgment proof, cannot be found, does not have possession of the ring now
2) Husband and wife scamming the pawnbroker
3) Pawnbroker could fence for the husband

→ Limits of Replevin…
1) Even with a judgment. Might not get the ring back (per barbershop case)
2) Goods must be found to be returned
3) Defendant may refuse sheriff’s help in finding goods and might conceal the good’s whereabouts
4) Even if you know the good’s location, recovery might be obstructed by rules of law

→ Equitable Relief:
1) There must be no other adequate remedy available at law to get into a court of equity
2) If you get equitable replevin judgment, can use the power of contempt for return of item
3) Just because you can’t get item back doesn’t limit equity.
4) Have to prove special circumstances = inadequate remedy
5) In equity, court less bound by precedent, makes court look less legitimate when exercising equitable powers.
→ Problems:
Judges feel less likely to issue equitable relief because they feel it calls legitimacy of judicial institution into question and they do violence. Courts must supervise execution of equitable decree—extra burden. Don’t want to use power unreasonably.

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