40 Barb. 397 | N.Y. Sup. Ct. | 1863
The defendant, being a jeweler, took the diamond ear rings and «pin and negotiated a sale of them to Eandall & Bareman, of Hew York, for $200. He acted in the transaction simply as the agent of Ashby and his wife, and to accommodate them, supposing at the time, in good faith, that they were the owners of the. property. The proceeds were transmitted to the defendant, and he without any compensation whatever delivered them over to Ashby and wife. He did not otherwise interfere with the property. The property in fact belonged to the plaintiff, by virtue of a personal mortgage, executed to him by Ashby and wife. This mortgage bore date August 25th, 1859, and was given to secure the payment of $600, in one year from its date, and also to indemnify the mortgagee against the misconduct of Ashby while he was a clerk and agent in the plaintiff’s employ. The plaintiff had never taken actual possession of the property. The learned referee finds as matters of law: 1. That the title to the diamonds was in the plaintiff at the time of the alleged conversion; 2. That the mortgage was given in good faith, and no question of fraud arises in the case; 3. But that the plaintiff left the property in the possession of the mortgagors for more than a year after forfeiture, and that thereby Ashby and wife were suffered to continue the apparent owners and enabled to commit the wrong complained of,
This was a short way to come to a conclusion, and such would undoubtedly be the first impression of most lawyers who did not give the question a more critical and extended examination. In Lee v. Mathews, (10 Ala. Rep. 687,) Judge Osmond, in delivering the opinion of the court, observed, that the first impression of the cburt was that the defendant having acted merely as the agent of another person, and having parted with the possession before he received notice of the title of the plaintiff, was not responsible in an action of trover for- the conversion of the property, but that the suit must be brought against the principal. Subsequent reflection, however, satisfied the court in that case, that it was mistaken, and that the principles upon which it relied did not govern such cases. My own impression was, when the case was ojiened, that this action could not be sustained; but I am compelled to believe that I was mistaken, for a subsequent examination of the authorities has convinced me that the defendant, although innocent of any intentional wrong, is answerable to the true owner of the property for having negotiated a sale of it on behalf of Ashby and wife, who, it is admitted, are guilty of a conversion. It is said in Saunders on Pl. and Ev. 1157, that if a party claims the property iü the chattels as his oion, or even asserts the right of another one therein, it will be evidence of a conversion; as where it was found that a bankrupt, being indebted to G. delivered goods to G.’s servant, who gave a receipt for them in his master’s name and sold them for his master’s use, the court determined that the sale, whether for the use of the seller or another, was a conversion; for when a person takes it upon himself to dispose of another’s property, it is a tortious act and the gist of the action. (Perkins v. Smith, 1 Wilson, 328. S. P. Parker v. Gidin, 2 Sira. 813.) Accordingly in
There is a class of cases which hold that the defendant cannot be made liable either in trespass or any other form of action, for simply receiving goods wrongfully delivered to him by the person in actual possession. (See Storm v. Livingston, 6 John. R. 44; Marshall v. Davis, 1 Wend. 111; Nash v. Mosher, 19 id. 431; Barrett v. Warren, 3 Hill, 350; Pierce v. Van Dyke, 6 id. 614.) The result of these cases would seem to be that “while no liability is incurred by the purchase or acceptance of goods, in ignorance of the title of the true owner, unless they are subsequently disposed of to a third person, or appropriated to the use of the vendee or bailee, yet that the benefit of this principle cannot be claimed without proving that they came to his hands through a delivery made by the wrongdoer, and without any participation in the tort of the latter, other than is necessarily implied in innocently receiving that which there is no right to give. (Millspaugh v. Mitchell, 8 Barb. 333. Ely v. Ehle, 3 Comst. 506. 1 Smith’s Lead. Cas. 488.) And the better opinion would seem to be that ignorance of the defendant of the wrong done by the person from whom he receives the goods, will not protect him from responsibility for subsequent acts amounting to a conversion or asportation, although done in good faith and without a knowledge of the true state of the title.; (Cobb v. Dows, 9 Barb. 230;) nor unless bis
The defendant having taken the property, and negotiated a sale of it for the benefit of Ashby and wife, must be held liable in this action, although he would have been excused for merely receiving the property into his possession in the ordinary course of his business, if he had not also aided the mort
It is, however, claimed by the defendant’s counsel, and assented to by the learned referee, that inasmuch as the plaintiff allowed the diamonds to remain in possession of Ashby and wife for a long time, he was guilty of that species of negligence or misconduct •grhich should estop him from now denying the right of Ashby and wife to give the property to the defendant to be sold for their benefit; and that .where one of two innocent persons must suffer'by the'fraudulent acts of a third person, the one who enables such third person to commit-the fraud, must bear the loss. But I think the defendant cannot invoke the aid of this principle in this case. The only evidence of misconduct or fraud, consists in his leaving the mortgagors in possession of the diamonds. It is said in 2 Smith’s Lead. Gas. 663, that the mere transfer of possession, and even of the indicia of title, to an agent or buyer, will not enable him to give a good title, in the absence of authority to sell. (And see 1 Smith’s Lead. Cas. 896, 897.) The bare possession of goods by a bailee has never, as I am aware, been held to confer upon him such an apparent ownership as will estop the true owner from pursuing his action against all those who voluntarily interfere in their subsequent conversion. It appears in this case that the mortgage was duly filed to make it valid as against subsequent purchasers, so that it is not claimed that the title passed to Bandall & Bare-man on the ground of fraud in the mortgage. The defendant cannot, therefore, protect himself under the title of the purchasers, even if the referee was mistaken in his opinion that the defendant was not in a position to raise such a question. And I am inclined to' think the referee was right in this view of the case, unless the evidence should authorize the
The judgment should be reversed and a new trial granted, costs to abide the event.
Mullin, J. also read an opinion for reversal.
Allen, J. concurred.
Bacon, J. dissented.
Judgment reversed and new trial granted.
Allen, Mullin, Morgan and Bacon, Justices.]