By the Court,
Johnson, J.
The defendant, as appears
from the- evidence, had authority to sell the horses, hut not at-the'-price. '-'- He was to sell for not less than $500, and actually sold them.for $200.
■The ease of Savjeani v. Blunt, (16 John. BA,) is directly upon'the point-that an action for the conversion of the property-will not' lie against an agent, for selling under the price fixed.. The same rule is laid down in Oairnes da Lord v. Bléeeleer (12 -id. 300) though the point was not there decided. (See also McMor-ris v; Simpson, 21 Wend. 610.) This must he so upon principle, or else the purchaser would get no title. Ho one, I apprehend, would pretend that the purchaser did not-'get :a good, title, because the agent having power to sell, sold for a price-something less than he was instructed to sell at;.' If the' purchaser gets a good title, it must he upon the ground that the agent had the right to sell. If he could sell and transfer a valid -title, the sale could not he tortious. The wrong in such a case consists, not in the act of selling, which is authorized, hut in the breach of duty, in selling at the re*249ducecl and unauthorized price. It is not the want of authority, hut the exercise of it contrary to the measure prescribed, which constitutes the wrong. The nonsuit at the circuit was therefore properly ordered; and a new trial must be denied, unless it was a case in which the judge had the right 'to allow the amendment to the complaint, which the plaintiff asked for, in order that it might be conformed to the facts proved. The judge, it will be seen, denied the application, not in the exercise of a discretion, but as a question of legal right, holding the defect to be, not a mere variance, but an entire failure of proof of the cause of action. The cause of action set forth in the complaint ivas the conversion of the property, and the allegation of the cause of action was wholly unproved in its entire scope and meaning. The evidence established another and different cause of action, but in no respect or degree the cause of action alleged. The amendments, had they been allowed as proposed, would have altered the complaint entirely, and converted it into a complaint containing a cause of action as distinct and separate from a cause of action arising from the conversion of property, as an action arising from assault and battery, or any other wrong. If the evidence had proved a conversion of the property, by some act of the defendant other than that alleged in the complaint, it would have been a variance, and amendable within the provisions of the code. But as it tended to establish a cause of action entirely different and distinct from the one alleged, and to disprove wholly the latter, it was just the case of a failure of proof of the allegation of the cause of action, in its entire scope and meaning. . Although forms of action are abolished by the code, causes of action are not. They remain distinct and distinguishable as they ever were, and ever must be, while legal rules regulate the conduct and dealings of men with each other. The decision was therefore right, on both grounds, and a new trial must be denied.
[Monroe General Term,
September 3, 1860.
E. Darwin Smith, Knox and Johnson, Justices.]