Kimball v. Billings

| Me. | Jul 1, 1867

Walton, J.

It is no defence to an action of trover that the defendant acted as the agent of another. If the principal is a wrongdoer, the agent is a wrongdoer also. A person is guilty of a conversion who sells the property of another, without authority from the owner, notwithstanding he acts under the authority of one claiming to be the owner, and is ignorant of such person’s want of title. Story on Agency, §§ 311 and 312, and authorities there cited; Coles v. Olark, 3 Cush., 399.

If, therefore, it be true, as the defendant says, that, in selling the bonds sued for in this case, he acted as the agent or servant of Mrs. Witham, and had no knowledge or suspicion that she was not the true owner of them, these facts constitute no defence to the suit. Mrs. Witham could not ' secure to him immunity for an act which she could not lawfully do herself.

Nor is it any defence that the property sold was government bonds payable to bearer. The bona fide purchaser of a stolon bond payable to bearer, might perhaps defend his title against even the true owner. But there is no rule of law that secures immunity to the agent of the thief in such cases ; nor to the agent of one not a bona fide holder. The evideuce in- this case satisfies us that Mrs. Witham was not a bona fide holder; that she received the bonds well knowing that they had been stolen, if she did not in fact procure the theft to bo committed. The defendant took the bonds into his possession, and, as her agent or servant, sold them.

The sale was a conversion of them, which made not only Mrs. Witham, but the defendant, liable for their value to the true owner. — The rule of law protecting bona fide purchasers of lost or stolen notes and bonds, payable to bearer, has never been extended to persons not bona fide purchasers, nor to their agents.

In Burdett v. Hunt, 25 Maine, 419, cited by defendant, the servant was held not liable, because he did not participate in the illegal sale; he was a mere carrier of the goods from the person lawfully in possession of them to the person to whom they were sold; and the Court held that such a removal was not under the circumstances an act of conversion. But the doctrine is there recognized that a sale by the agent would have made him liable.

Bonds to the amount of $400 were stolen from the plaintiff, but the evidence fails to satisfy us that more than three hundred dollars worth of them came into the haiids of the defendant and wei'e sold by him, The exact date of the sale is not shown, but wo ai*e satisfied it was as early as the first of November, 1863.

Judgment for plaintiff for $300, and interest from Nov. 1, 1863.

Appleton, C. J., Cutting, Dickerson and Tapltsv, JJ. concurred.