| NY | Apr 25, 1871
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *389 By the larcenous taking of chattels the owner is not divested of his property, and a transfer to a purchaser does not impair the right of the true owner. A purchase of stolen goods either directly from the thief or from any other person, although in the ordinary course of trade and in good faith, will not give a title as against the owner. In the case of a felonious taking of goods, the owner may follow and reclaim them wherever he may find them. A carrier or other bailee can stand in no better situation than a purchaser who has received them in good faith on a purchase for their full value.
A larceny has been defined as "the felonious taking the property of another, without his consent and against his will, with intent to convert it to the use of the taker" (Hammond's Case, 2 Leach, 1089), or "the wrongful or fraudulent taking and carrying away by any person of the personal goods of another, with a felonious intent to convert them to his (the taker's) own use and make them his own property without the consent of the owner." (2 East, P.C., 553; 2 Russ on Crimes, 1; Mowrey v.Walsh, 8 Cow., 238" court="N.Y. Sup. Ct." date_filed="1828-02-15" href="https://app.midpage.ai/document/mowrey-v-walsh-5465082?utm_source=webapp" opinion_id="5465082">8 Cow., 238.)
The fraudulent and wrongful taking being proved with the felonious intent, the animo furandi, the only question remaining in any case is whether the taking was with the consent of the owner; for if so, although the consent was obtained by gross fraud, there is no larceny. But the consent must be to part with the property, and not the naked possession for a special purpose. If the owner does not intend or consent to part with his property, then the taking and conversion of it with a felonious intent by one having possession of it, as the property of the owner and for a special purpose is larceny. If it *392 appear that although there is a delivery by the owner in fact, yet there is no change of property nor of legal possession, but the legal possession still remains exclusively in the owner, larceny may be committed as if no such delivery had been made. (Mowrey v. Walsh, supra, and cases cited; and 2 Russ. on Crimes, 22; Lewis v. Commonwealth, 15 S. R., 93;Commonwealth v. James, 1 Pick., 375; Cary v. Hotaling, 1 Hill, 311.) The general owner of personal property holds the constructive possession and may maintain trespass, though the actual possession be in another; and one who obtains the bailment of goods, or the possession for a special purpose, fraudulently intending to deprive the owner of his property, may be convicted of larceny. But if the owner intends to part with the property and delivers the possession, there can be no larceny, although fraudulent means have been used to induce him to part with the goods. The delivery of the receipt to Careras was to enable him to examine the goods before paying for them, and for no other purpose; and with the consent of the plaintiff he had access to, and possession of the goods for this special purpose. The sale of the goods was for cash, to be paid on delivery; the condition was never waived, and there was no absolute delivery of the goods or of the receipt for them with intent to part with the property, except upon the payment of the purchase-price. Had the ship owner received from Careras the original receipt or bill of lading for the goods, and dealt with him on the faith of it, as evidence of ownership, a different question might have arisen. But Careras had availed himself of that document to possess himself of the property, which he took and removed from its place of deposit to the ship of the defendant's testator. Careras had the naked possession of stolen property, and the ship owner was not misled or induced to receive it by the production of any other evidence of ownership. Neither did any question arise upon the trial as to the effect, upon the right of the plaintiff to demand an immediate delivery, of the fact that the goods were stored in the hold of the vessel under other goods, and that a breaking up of the cargo *393 would cause delay and expense, and that the officers of the vessel offered to deliver the goods to the owner on the return of the ship from Havana.
There was no conflict of evidence, nor any question to submit, as to the felonious taking of the goods, to the jury.
The plaintiff being clearly entitled to a verdict, upon the ground that the goods had been feloniously stolen and taken from him, the other questions made were wholly immaterial. The actual delivery of a bill of lading to the shipper by the testator would have given him no better right to retain the goods for his indemnity than a purchaser in good faith and for value would have done. Neither could acquire any right to withhold stolen property from the plaintiff, the rightful owner.
The goods having been stolen, there was no question of negligence or estoppel in the case. A party whose horse is stolen may pursue and reclaim his property, although he has negligently left his stable unlocked.
The question of estoppel would have arisen, if the shipowner had had knowledge of, and acted on, the faith of the original shipping receipt, delivered to Careras.
The delivery of the goods for the purpose named, although it enabled Careras to perpetrate a fraud upon the defendant's testator, did not divest the plaintiff of his title or estop him from reclaiming them wherever found.
The judgment must be affirmed.
All concur except GROVER, J., not voting.
Judgment affirmed.