56 Tenn. 708 | Tenn. | 1872
delivered the opinion of the Court.
The declaration in this case contains two counts: one in trover, the other for money had and received
The plaintiffs, Turk & Hawkins, lived in Tunica county, Mississippi, and were, in the year 1869, engaged in farming. Turk, being sick at the time, sent three bales of cotton by one Samuel Smith, to Commerce Landing, on' the Mississippi river, to be shipped to the defendants, A. J. Roach & Co., who were his commission merchants in the City of Memphis, and to whom he owed about $100. Turk gave Smith the card of A. J. Eoach & .Co., telling him to give it to a Mr. Mosely, who was the shipping agent at Commerce, and tell him that he had sent the cotton, and wanted it shipped to A. J. Eoach & Co. The cotton was marked A. T., but belonged to Turk & Hawkins. One J. W. Ware was at the time the clerk of Mosely, and attending to all the shipping business for him when absent. Mosely was absent when the cotton arrived, and Smith delivered it to Ware, with the card and directions of Turk. Ware, instead of shipping the cotton as directed, sent it in his own name to A. J. Roach & Co., accompanied by the following letter:
A. J. Eoach & Co.
“ Gentlemen: — I ship you three bales of cotton per steamer Les Arc to-day, which you will please bold until further orders, and oblige
Yours truly,
J. W. Ware.”
It may be conceded in the present ease, that the plaintiffs were entitled to recover the cotton from Roach & Co., on demand and a refusal to deliver. It would seem very doubtful, however, whether they could
We know it is sometimes loosely said in cases, that any unauthorized act of dominion over the property of another is a conversion: but on looking into the facts of these eases it will be found that it was always meant that such unauthorized dominion or control had in it the element of an assertion of adverse right or claim, to that of the true owner; and without this, there can be, on sound principle, no conversion. Upon this reasoning, and the authorities we\ have cited, it is clear, that while the agent, Ware, had no power to sell or convey the title to the cotton, and could communicate none to the defendants, Roach & Co.; and while the cotton, in the hands of Roach & Co. or their vendees, might be recovered by the plaintiffs': yet, we hold that the mere act of selling the cotton as factors, with no knowledge of the plaintiffs’ title, could j not make Roach & Co. liable for a conversion. We/ can not admit the correctness of the deduction — in the 5th Coldwell case — drawn from cases holding, that the agent, not having power to sell, can communicate no title to a vendee; and that it therefore follows that an innocent factor, — with no knowledge of the agent’s violation of his trust, — who in the exercise of ordinary prudence and caution sells the property placed in his hands, by one who has possesion of it, and therefore a prima facie title to it, is guilty of a conversion and liable in trover to the true owner, nothing more appearing. We hold, that in order to make the factor
The case will be reversed, and remanded for a new trial.