Sartin v. Saling
21 Mo. 387
Mo.
1855
Check Treatment
Leonard, Judge,

delivered the opinion of the court.

The second instruction, given at the instance of the plaintiff, is erroneous. The plaintiff, according to his own proof, let Scott have the mare, either under a loan or upon a conditional sale, that was to vest the title in him upon his doing certain work he had contracted to do for the plaintiff. The mare was afterwards seen in the possession of Henry Saling, a minor son of the defendant, and originally a co- defendant with him. It appeared on the part of the defendant, that after Scott got possession of the mare, he sold her, and that Henry Saling got possession of her from a third person, after she had passed through several purchasers, and then sold her himself. Upon the plaintiff’s demanding her of the son, which, according to the plaintiff’s proof, was after the latter had “ traded her off,” the defendant said that, from what he had heard about it, he believed she was Scott’s mare, at the time of the trade, and advised Henry not to give her up until he had inquired further into the matter. This was the evidence to which the instruction was applicable, and in reference to which its propriety must be judged of and determined.

Undoubtedly, all who wrongfully contribute, in any manner, to the commission of a trespass, are responsible as principals ; and those who improperly advise or encourage the wrong, or, when it is committed for their benefit, subsequently agree to it, are equally liable with those who put their own hands to the act. In this matter, the law does not distinguish between different shades of guilt, or different degrees of efficiency, in effecting the wrong, but holds every one, who has improperly contributed to it, responsible for the whole injury.

There is no aspect of the case, however, in which this advice ought to render the father liable for the alleged wrong of the son. The rule adopted in Massachusetts, which seems also to be the rule of the English law, is, that one who acquires the possession of personal property from a bailee of the owner, wrongfully parting with the possession, is liable in trespass to the

*390owner for sucb taking, although it was in good faith, and without any knowledge of the bailee’s breach of duty in disposing of the property. (Stanly’s adm’r v. Gaylord, 1 Cush. Rep. 586.) But in New York, trespass will not lie against one who comes to the possession of the goods by delivery, and without any fault on his part, although the person who made the delivery had no title, and was a wrongdoer; and the only remedy there, against such a person, is by an action of trover, after a conversion by a sale or otherwise. (Barret v. Warren, 3 Hill, N. Y. Rep. 350. Storm v. Livingston, 6 Johns. Rep. 44.) If the son had disposed of the mare before demand made upon him, which was the time of the father’s interference in the matter, the wrong was then consummated, under either view of the law, and the father’s advice could not have contributed to it, but, at the utmost, could only be considered as advice not to make amends until, upon further inquiry, he should be satisfied of his liability; and there is no authority whatever, for saying that the trespass of a minor son is for the father’s benefit, and that, therefore, the advice given subjected the father to responsibility on the principle of a subsequent assent to a trespass committed for his benefit. If, however, the mare was then in the son’s possession, there was nothing improper in the father’s conduct, under the circumstances of the case. Certainly, it was the duty of the son to restore the mare to the plaintiff, if she belonged to him, and he was not advised otherwise. The advice given was, in effect, to examine into the matter, and act accordingly — restore the mare, if she belonged to the plaintiff, but otherwise, resist the demand ; in a word, to act as every sensible man, under the circumstances, would have acted ; and there is neither authority nor reason for subjecting the father to liability for such conduct, as having thereby improperly contributed to the injury.

The instruction of the court was given under a different view of the law, and, when applied to the evidence, must have misled the jury. The judgment must, therefore, be reversed, and the cause remanded.