Arthur v. Balch

23 N.H. 157 | Superior Court of New Hampshire | 1851

Gilchrist, C. J.

It was formerly held where goods were converted by a servant, at the command or by the direction of Ms master, that no action would lie against the servant, but against the master only. Mires v. Solebay, 2 Mod., 242. But this doctrine is no longer held to be law. In the case of Stephens v. Elwell, 4 M. & S., 259, it was decided that a servant might be charged, in trover, although the act of conversion were-done by him for the benefit of his- master. In that case Lord Fllenborough, said “ a person is guilty of a conversion' who intermeddles with my property and disposes of it; and it is no answer that he acted under authority from another who had him-, self no authority to dispose of it.” It seems also from the case of Duncan v. The Surrey Canal, 3 Starkie, 50, that the agent of an incorporated company, acting under the direction of a committee for managing the affairs of the company, may be guilty of a conversion.

But unless there be evidence to connect the defendant with the transaction, he cannot be charged. To prove a conversion, of a quantity of bricks, it was shown that some men fetched them away in a cart; and on being asked by the witness why they did so, they said, they were ordered by their master, Mr. Wood. It appeared that the name “ James Wood,” was painted on the cart. On this evidence the court held that there was nothing to connect the defendant with the transaction. Everett v. Wood, 1 C & P., 75. So in the case of Barnard v. How, 1 C. & P., 366, a horse was kept at the defendant’s stables, and one day when he was from home, three or four of his servants, being in charge of the premises, the horse -was taken away. The defendant blamed his ostlers for letting it be taken, but on being himself remonstrated with,'replied, that it was of no consequence, because he was indemnified. The court held, that the horse appeared, on the evidence, to have been taken away without the knowledge or assent of the defendant, and that he was not guilty of a conversion.

But although, the defendant must he connected with the transaction, in order to be chargeable with a conversion, he need not have given his servant an express direction to commit the act in question. It is enough to charge him if the servant be in the performance of, and be intrusted with, the ordinary business of his master. In the case of Jones v. Hart, 2 Salkeld, 441; 1 Lord Raym., 738, a pawnbroker’s servant took a pawn, and the pawner came and tendered the money to the servant, who said the goods were lost or sold. Holt, C. J., held that trover would lie against the master. So in Dench v. Walker, 14 Mass. Rep., 500, it was held, where the defendant undertook to transport rum for the plaintiff, and on the journey it was adulterated, either by himself or his servant, that trover would lie either against him or the servant. So in Rooke v. The Midland Railway Company, 14 Law & Eq. Rep., 175, a demand of goods made upon the station master, at the station where the goods were, and a refusal, was held to be evidence of a conversion by the defendants.

The case finds that the defendant did not deny that the evidence showed a title in the plaintiff, and a possession and use of the horse by the defendant. The only question then seems to be whether the act of George could make the defendant liable in trover. The defendant had a contract upon the Concord and Claremont railroad, and George acted as his agent, and the horse was used about the work. George’s reference to the sheriff was of no avail, because it does not appear that the sheriff had any authority to dispose of the horse. The case does not find that he had complied with the provisions of ch. 184, § 15, Rev. Stat., relating to the attachment of property mortgaged. Being then the agent of the defendant, in the transaction of his ordinary business, and having the possesion and use of the horse, in the performance of it, the defendant is, upon the authorities, liable in trover for the act of his servant.

Verdict set aside.