93 Minn. 402 | Minn. | 1904
Action for the conversion of an automobile, claimed to have been the property of plaintiff, but wrongfully appropriated in opposition to his rights. The conversion was disputed, and the cause tried to the court and a jury. At the close of the evidence a verdict was directed for defendants. There was a motion for a new trial upon the evidence, which was refused. From this order plaintiff appeals.
There can be little doubt but the defendants were restricted by the terms of their agency to the sale of the machine upon the delivery of the specified purchase price, but it does not appear that the Water-town Bank had objected to the defendants’. taking the property into their possession, although it was done in violation of the contract in that respect, as well as in its unauthorized sale for a price less than permitted therein. It seems obvious that the learned trial court, in directing the verdict for defendants, adopted the view that there must have been a manual taking of the machine and retention of possession by defendants against an assertion of dominion by the plaintiff, but it is now well settled in this state that a person who obtains possession of the property of another in denial of the owner’s rights, or disposes of it inconsistent therewith, may, at the election of such owner, be subjected to an action for conversion against the party making such unlawful appropriation. McDonald v. Bayha, 93 Minn. 139, 100 N. W. 679. And it would seem to follow that a sales agent illegally ob-
Had it conclusively appeared that plaintiff, with knowledge of the facts concerning the sale to Mowrey, had assented thereto, and accepted the money forwarded, it could justly have been claimed that he waived the right to complain, and such waiver might have foreclosed his right to maintain an action against the agent for conversion ; but upon the evidence it was not clear that the illegal act of defendants was assented to, or the money received with sufficient knowledge of the true state of facts to justify the court in taking this issue from the jury. Even if there had been a waiver, plaintiff would have a cause of action against the agent for the balance of the purchase price of the machine, and in the action for conversion the defendants could have pleaded in mitigation of damages the amount of money that had been received, and they cannot complain in this proceeding that their failure to do so has entailed loss upon them.
For the error of the court in directing a verdict, the order appealed from is reversed, and a new trial ordered.