117 Misc. 663 | N.Y. App. Term. | 1922
Lead Opinion
Conversion, for the defendants’ alleged wrongful delivery of a bond. The parties on both sides are stock-exchange brokers. Plaintiffs had agreed to sell and deliver to defendants a bond of the Oregon Short Line Railroad, of the par value of $1,000. To fill that order plaintiffs ordered the bond from a third bond house arid the latter, by mistake, sent plaintiffs an Oregon and California Railroad bond, and plaintiffs, also by mistake, sent this Oregon and California bond to defendants. There is no controversy as to the manner of the sending. Plaintiffs handed the Oregon and California bond to Goldberg, a youth of seventeen years, who was one of plaintiffs’ two messengers, or “ runners ” as they seem to be
Concededly, the boy to whom Quackenbush returned the bond delivered by Goldberg was not Goldberg, but some unidentified boy who made away with the bond. The bond was of the hearer type, fully negotiable.
The defendants have refused to make good the plaintiffs’ loss, contending that they were chargeable only with due diligence, and that, accepting the version of the plaintiffs as given by Goldberg, it appears that they exercised all the care required of them. The plaintiffs contend that there was an absolute obligation on the part of the defendants to redeliver the bond to the plaintiffs, and that no question of negligence enters into the case. They also argue that if the negligence question does enter, there was sufficient evidence
A person who has been put, through no act or fault of his own, in such a situation as that in which the defendants were put upon the delivery to them of ,the wrong bond, has come to. be known as “ involuntary bailee ” (1 Halsbury Laws of Eng. 528; Heugh v. L. & N. W. R. R. Co., L. R. 5 Ex. 51 (1870); 5 Cyc. 166, n. 27; Story Bailm. [7th ed.] §§ 44a, 83a), or bailee by casualty (T. J. Moss Tie Co. v. Kreilich, 80 Mo. App. 304) or constructive or quasi bailee (Schouler Bailm. [3d ed.] ¶ 3):
In the field of voluntary bailments, whether they be for hire or be otherwise coupled with an interest on the part of the bailee, or whether they be merely gratuitous, no rule is better settled than that it is the duty of the bailee to deliver the bailed article -to- the right person, and that delivery to the wrong person is not .capable of being' excused by any possible showing of care or good faith or innocence. Willard v. Bridge, 4 Barb. 361; Hawkins v. Hoffman, 6 Hill, 586; Esmay v. Fanning, 9 Barb. 176; Packard v. Getman, 4 Wend. 613; Carroll v. Mix, 51 Barb. 212; Coykendall v. Eaton, 55 id. 188; McEntee v. N. J. Steamboat Co., 45 N. Y. 34; Price v. Oswego & Syracuse Ry. Co., 50 id. 213; Bank of Oswego v. Doyle, 91 id. 32; Ouderkirk v. Central National Bank of Troy, 119 id. 263; Sonn v. Smith, 57 App. Div. 372; McKillop v. Reich, 76 id. 334; Cohen v. Koster, 133 id. 570; Hasson v. Platt, 163 id. 366; Stewart v. Frazier, 5 Ala. 114; Lichtenhein v. Boston & Providence Railroad Co., 11 Cush. 70; Hall v. Boston & Worcester Railroad Co., 14 Allen, 439; Jenkins v. Bacon, 111 Mass. 373; Jones v. Dowle, 9 M. & W. 19; 6 C. J. 1143; 27 Eng. R. Cas. 252, 253; 1 Halsbury Laws of Eng. 527.
What, then, is the difference, if any, between the duty of a voluntary gratuitous bailee, and that of a wholly involuntary bailee? There is an astonishing paucity of decision and text opinion upon the subject. I think, however, that all that can be found upon it points to the conclusion that the involuntary bailee, as long as his lack of volition continues, is not under the slightest duty to care for or guard the subject of'the bailment, and cannot be held, in respect of custody, for what would even be the grossest negligence in the case of a voluntary bailment (1 Halsbury Laws of' Eng. 527, 528; Howard v. Ellis, 1 Cab. & El. 253; Smith v. Nashua & Lowell Railroad Co., 27 N. H. 86); but that in case the involuntary bailee shall exercise any dominion over the thing so bailed, he becomes as responsible as if he were a voluntary bailee. 1 Halsbury, 528, ¶ 1078; Story Bailm. (7th ed.) §§ 85-88; Smith v. N. & L. R. R. Co., supra; T. J. Moss Tie Co. v. Kreilich, 80 Mo. App. 304; Hiort v. Bott, L. R. 9 Ex. 86.
In Hiort v. Bott, supra, the plaintiff shipped barley to defendant, at the same time sending to defendant an invoice stating that the barley was ordered by defendant through G., described in the invoice as a broker acting for both parties, and with the invoice was a “ delivery order ” that made the barley deliverable to the order of ‘ ‘ consignor or consignee. ’ ’ The defendant had not ordered the barley, and had never had any dealings with either the plaintiff or G. A few
The distinction sought to be made by the judges in the Hiort case to escape the holding in the Heugh case is so far from clear to me that I shall not attempt to state it.
In T. J. Moss Tie Co. v. Kreilich, 80 Mo. App. 304, the organizers of a railroad company, which never became an accomplished fact, purchased a right of way with reversion to the grantor in case the road was not constructed. Prior to the abandonment of the project, railway ties were placed upon the land so purchased. After abandonment, the reversioner refused to give the ties up. It was held that he was held to an absolute liability to give them up to the true owner, and that, the only question in the cáse was as to who that owner was.
In Krumsky v. Loeser, 37 Misc. Rep. 504, the facts, as stated by Mr. Justice Greenbaum in his opinion, were as follows: “ The plaintiff is a manufacturer of ladies’ wrappers. The defendants are the proprietors of a large department store in Brooklyn. The parties had never had business relations with each other. On April 19, 1901, two swindlers purporting to represent the defendants ordered a bill of goods of the plaintiff, with directions to deliver them to the defendants’ place of business. The plaintiff, after satisfying himself of the financial ability of defendants, as he asserts, sent the goods
I am of the opinion that the Krumsky case is clearly distinguishable from that at bar. As I read the opinion there, the holding of the court was predicated upon two considerations, neither of which touches the instant case, namely, that the possession of the defendants there was due to a trick and a fraud and defendants’ total lack of knowledge of the true owner. As to the effect of fraud, there is support to be found for the Krumsky decision in Metzger v. Franklin Bank, 119 Ind. 359 (and see Schouler Bailm. [3d
As to the effect of the total lack of knowledge on the part of the bailee concerning the identity of the bailor, the decision in the Krumsky case does, however, find strong support in the case of Morris v. Third Ave. R. R. Co., 1 Daly, 202. There a satchel was found in a street car by the conductor. No one knew how it got there. Presumably, it was unintentionally left behind by some passenger. The conductor brought it, at the end of his run, to the railroad office. A few minutes later an impostor called for the satchel and, upon testimony which the trial and appellate courts held warranted a finding that there was an inadequate description by the impostor of the contents of the satchel, the railroad officials delivered the satchel to the impostor. The ruling was that the defendant’s duty was merely to exercise reasonable care. I think it is possible to agree that the case was correctly decided, without admitting that the decision touches the instant case, or that it was rested upon entirely correct principles. The court there described the defendant carrier as a bailee for hire at the time of its delivery over of the satchel. Had that been so, clearly the duty of the defendant to deliver to the right person was absolute. But, although the court fell into that undoubted error, I am inclined to think it. reached the right conclusion, and upon the proper ground, viz., that because the defendant carrier did not have any reason to know who the true
I have reached the conclusion that while, at first blush, it may seem to be imposing upon the defendants an unduly severe rule of conduct to hold them to an absolute liability, the rule is no more severe than the occasion calls for. The exchequer judges in the Hiort case were reluctant to hold the defendant there to the rule of absolute liability, but they were, nevertheless, unanimous in doing so; and I think the rule worked more harshly there than it would here. There, the parties never had any relations with each other. Here, the plaintiffs were at least attempting to fill an order given by the defendants. The defendants could easily have protected themselves by telephoning the plaintiffs that the wrong bond had been delivered, or they could have sent the bond back to the plaintiffs by one óf their own messengers. Instead, they chose to take the chance of delivering it to the wrong messenger. As the delivery window was closed when the bond was dropped through the slot, and remained closed for an appreciable time, they could not have known what messenger had made the delivery.
As was said by one of the judges in the Hiort case, many ingenious supposititious cases might be suggested involving erroneous deliveries of parcels at one’s home or business place, but, as was there observed, “ probably the safest way of dealing with (any such case) is to wait until it arises.”
The plaintiffs, as has already been mentioned, urge that if the defendants are not to be held in conversion they are, at least, liable in negligence. The action, however, was brought in conversion, and both sides insist that it was tried as a conversion action. The judgment, therefore, may only be sustained, if at all, upon that theory.
For the reasons stated, I vote to affirm.
Judgment affirmed, Avith twenty-five dollars costs, Avith leave to defendants to appeal to the Appellate DiAdsion.
Dissenting Opinion
(dissenting). I agree in all material particulars Avith the statement of facts contained in
Thereafter the plaintiffs made a formal demand upon the defendants for the return of the bond, but at that time the bond was of course no longer in their possession and they could not comply with the demand. The plaintiffs thereupon brought this action alleging in the complaint that on June tenth they were under contract to deliver to the defendants a $1,000 bond of the Oregon Short Line Railroad Company and that they delivered to the defendants a ‘ ‘ certain bond ’ ’ which they believed to be a bond of the Oregon Short Line Railroad for the purpose of complying with their contract. That subsequently they were informed that the bond was a $1,000 bond of the Oregon and California Railroad Company, and the defendants refused to accept said bond as a compliance with their contract for a bond of the Oregon Short Line Railroad. That, “ by reason of the premises the plaintiffs are entitled to the return of the said bond of the Oregon and California Railroad Company and have duly demanded the same from the defendants but defendants have wrongfully neglected and refused to deliver same to plaintiffs.”
It is unnecessary now to consider whether the complaint sufficiently sets forth any cause of action, for no motion was made by the defendants to dismiss the
While the slot in the window constituted an invitation to deliver at that place securities intended for the defendants, it is evident that it constituted an invitation only to deliver securities which the defendants were under some obligation to receive. Obviously no person could by slipping in other securities impose upon the defendants without their consent any affirmative obligation to care for these securities, to pay for them or even to receive them. The plaintiffs never intended to deliver to the defendants an Oregon and California Railroad bond. By their mistake the plaintiffs divested themselves of possession of the bond, but they did not transfer to the defendants either title or right to possession if they demanded the return of the bond. The defendants had not consented to accept the bond as a deposit; they claimed no title to it and they were not subject to any trust .or obligation as bailees, for a bailment arises only through an express or implied contract. They were put in possession of the bond without any agreement on their part, express or implied, to accept the deposit of the bond; and though persons who come into possession of the property of others without their consent are sometimes for convenience called “ involuntary ” or “ quasibailees,” they incur no responsibility to the true owner in respect thereof. It is only where they com
It can hardly be contended, however, that every “ overt act ” of interference with the property creates an implied obligation of bailment. Undoubtedly an “ involuntary bailee ” need not abandon the property,, but he may, without incurring further liability, at least take steps to preserve and care for the property. As stated by Mr. Justice Mullan it is only in case the involuntary bailee shall exercise any dominion over the thing so bailed that he becomes as responsible as if he were a voluntary bailee. The exercise of dominion, as I understand it, necessarily involves some act inconsistent with the complete right of dominion of the real owner, at least to the extent that it would be wrongful unless performed by some person to whom the owner had transferred the right to possession. In other words, an implied contract of bailment with its consequent obligations arises only where a person in possession of the property of another does some act which is inconsistent with the view that he does not accept the possession which has been thrust upon him.
The “ overt act ” which it is claimed constituted an improper interference with or act of dominion over the plaintiffs’ property consists of a delivery of the bond to a stranger who had no title to it. If the defendants had attempted to transfer to this stranger any title or right of possession of their own, then of course they could not claim that they had never accepted possession of the bond as bailees. They would then be on the horns of a dilemma, for they would have either denied the right of the true owner and thereby converted the property to their own use or would have exercised a right which was theirs only if they accepted the deposit of the bond left with them.
The defendant could not indorse the delivery order unless he had title to the barley either in his own right or as agent for the true owner. He did not claim title in his own right, and if he had done so knowing that the ostensible title had been transferred to him only by mistake, such act would in itself have constituted a conversion. His act was lawful, therefore, only if he had accepted title as an agent. The fraud of the alleged broker induced him to believe that he had authority as agent of the true owner to transfer title, but he voluntarily assumed to act as agent of the owner and to accept title as such agent. By voluntarily doing an act which would be lawful only if he accepted title either in his own right or as agent of the owner, he was not in a position to say that possession of the property was thrust on him without his
It seems to me quite clear that this was the real ground of the decision in the case of Hiort v. Bott, supra, and the facts in the case before us are so clearly distinguishable that it can in no wise be regarded as an authority for the contention of these plaintiffs, and in fact the reasoning of the opinions rendered in that case supports the contention of the defendants herein. In the present case the defendants were put in possession of the bond by mistake; they discovered the mistake promptly and thereafter they committed no" “ overt act ” of interference with the bond except that they attempted to divest themselves of this possession by delivering the bond to a person whom they believed to be the messenger of the plaintiffs. That act was not only consistent with the continued title and right of dominion in the plaintiffs but was an honest attempt to restore possession to the true owners. It certainly cannot be contended that the defendants were bound at their peril to wait until the plaintiffs came to their office and physically took away their property; they could take proper steps to divest themselves of the possession thrust upon them by mistake without thereby impliedly agreeing, contrary to their clear intention, to accept possession as bailees with the consequent obligations flowing from such relation. It is quite immaterial whether we call these defendants bailees or not if we keep in mind the fact that the possession of these goods was thrust upon them by mistake of the plaintiffs and without their invitation or consent, and that, therefore, any liability for failure to return the goods to the true owner upon demand
I have examined the other cases cited in the briefs or in Mr. Justice Mullan’s opinion but I have found no case which is in any way inconsistent with these views. It would serve no purpose to analyze them separately for in every case it very clearly appears that where a party has been held liable for failure to return goods to the true owner on demand one of the following elements appeared: 1, the defendant had accepted the deposit of the goods and was therefore under a contractual obligation to return them on demand; or 2, the goods were still in the possession of the defendant when the demand was made; or 3, the defendant had done some voluntary act consistent only with the view that he claimed some property in the goods either as owner or agent of the owner. In all such cases, upon well established principles, the person in possession of the goods is bound to return the goods to the true owner on demand and a previous delivery to a third person even by innocent mistake cannot constitute any excuse or defense for a failure to comply with his obligation. Liability in law must in all cases be founded either on contract or on some wrongful act. The defendants in this case promptly evinced their intention not to accept the possession of the bond thrust upon them by mistake; they merely attempted to divest themselves of this possession, and certainly
While no case has been cited which is exactly parallel to the present case, it seems to me that in several cases in the courts of this state these considerations have been assumed, even if not expressly stated. The case of Cohen v. Koster, 133 App. Div. 570, is very easily distinguishable from the present case, but there was in that case a delivery of plaintiff’s goods in defendant’s possession, by the defendant to a thief and both the prevailing and the dissenting opinion
Even if under these pleadings we could consider the question of negligence, I find no evidence upon this question to sustain a judgment in favor of the plaintiffs. There is no doubt that the defendants acted in good faith and in the honest belief that they were handing back the bond to the messenger who delivered it. They had assumed no obligation of any kind to the plaintiffs; any act they performed was for the plaintiffs’ benefit and it was through plaintiffs’ mistake that they were called upon to act at all in the premises. Doubtless if they had foreseen the possibility of mistake they would not have delivered the bond to the wrong messenger; but it was not unreasonable to suppose that the messenger might be waiting or that if he had left, no thief would be in the office who would claim to represent the plaintiffs. They probably committed an error of judgment but for such error they cannot be held liable. Since they owed no obligation to the plaintiffs and acted in good faith under the reasonable belief that they were returning the bond to the messenger who delivered it, I see no ground for imposing upon them liability for the loss of a bond which would never have been lost but for the plaintiffs’ mistake, due apparently to the plaintiffs’ negligence..
The contention of the plaintiffs that under sections 129 and 131 of the Personal Property Law the defendants are liable for the price of the Oregon Short Line Bailroad Company bond which they had agreed to purchase from the plaintiffs because they failed to return
For these reasons it seems to me that the judgment should be reversed, with costs, and the complaint dismissed, with costs.
Judgment affirmed, with twenty-five dollars costs, with leave to defendants to appeal to the Appellate Division.
Concurrence Opinion
(concurring). I concur in the conclusion reached by Mr. Justice Mullan and vote to affirm. I believe that defendants haifing received the bond and taken it into their possession became liable even as gratuitous or involuntary bailees for its proper re-delivery to the true owner.