| N.Y. Sup. Ct. | Oct 15, 1839
By the Court,
I cannot see this case in so strong a light against the defendant as it was regarded by the judge on the trial. There was, at least, a fair question for the jury, which should not have been withdrawn from their consideratipn. The farmers in Delaware, instead of selling their butter at home, are in the habit of going to market themselves. Those who do not go, send by their neighbors, who receive a compensation for their services. The defendant received the plaintiff’s butter to sell, with no other instructions or limit to his authority than that of doing the best he could with the property, or doing as well by it as if it was his own ; with those instructions he literally complied. After making a faithful and diligent, though fruitless effort to sell in New York at what was deemed a fair price, he sent the plaintiff’s butter, together with his own and his son’s butter, to the south, to be sold by the Mc-Laughry’s. It is admitted that he acted with perfect good
It is not improbable that both parties supposed the butter would be sold in New York, and that the defendant would himself make the sale; but no such qualification of the defendant’s authority was directly proved, and whether it could be fairly inferred from the circumstances of the case was a question for the jury. It appears affirmatively that nothing was said by the plaintiff about the place where he wanted the butter sold, and it also appears that butter was frequently sent south for a market when sales could not be advantageously made in New York. But it is said that this was only done by the owners of property—not by consignees and agents. Now, what was the defendant’s commission but a license to act as though he were the owner ? The plaintiff says to him, “ Do the best you can with my butter; do as well by it as if it was pour own.” And besides, one witness who had known butter sent south, added, that he knew no different custom in selling butter on consignment, or selling one’s own butter.
Then, as to entrusting the property to a sub-agent, one of the witnesses says, that consignees frequently leave the butter in New York to be sold. The mere fact of appointing a sub-agent, therefore, was not against the usual course of this business. And besides such an appointment is the necessary consequence of sending to another market, for none of the witnesses say that the owner or consignee of the property goes with it to the southern market.
The extent of an agent’s authority may be gathered from his instructions, and the usual course of the business about which he is employed. In this case, whether we judge from what was said between the parties at the time, or the nature of the employment, we cannot but see that the p.aintiff intended to give the defendant a very large discretionary power. What inference the jury would have drawn from the matters proved, had the question been left to them, I will not attempt to conjecture, but they certainly would not have been bound to find that the defendant had
It is said that the judge should have been requested to submit the question to the jury. . The case specifies several points made by the defendant’s counsel, on which the judge was requested to charge in his favor. It is then added that the judge held the law to be, and charged the jury, L. That the defendant was bound to sell in New York, and not elsewhere,” &c. The counsel must have understood the judge as meaning to say, that there was no question of fact for the jury—that as matter of law, on the facts proved, the plaintiff was entitled to a verdict. The case of Read v. Hurd, 7 Wendell, 408, and Fitzgerald v. Alexander, 18 id. 402, are decisive on this point.
The question whether, in any view of the case, this action of trover can be maintained, was discussed on the argument, and as that point may arise on another trial, it will be proper to give it some consideration. The most usual remedies of a principal against his agent are the action of assumpsit, and a special action on the case ; but there can be no doubt that trover will sometimes be an appropriate remedy. That action may be maintained whenever the agent has wrongfully converted the property of his principal to his own use; and the fact of conversion may be made out, by showing either a demand and refusal, or that the agent has, without necessity, sold or otherwise disposed of the property contrary to his instructions. When an agent wrongfully refuses to surrender the goods of his principal, or wholly departs from his authority in disposing of them, he makes the property his own, and may be treated as a tort-feasor. But there must be some act on the part of the agent—a mere omission of duty is not enough, although the property may be lost in consequence of the neglect. Nor will trover lie where the agent, though wanting in good faith, has acted within the general scope of his powers. There must, I think, be an entire departure from his authority before this action for a
In the case at bar, if the defendant was limited to a sale in the city oí New York, and not elsewhere, the delivery of the property to a third person to be disposed of in another market, would, I think, be a conversion. But there must be a new trial, on the ground that the case belongs to the jury.
New trial granted.