Dudley v. Hawley.

Stephens v. Elwall, (4 Maule & Sel. 259,) it was held that a servant may be charged in trover, though the conversion be done by him for the benefit of his master. Lord Ellenborough, C. J. said that "the clerk acted under an unavoidable ignorance and for his master's benefit, when he sent the goods to his master; but nevertheless his acts may amount to a conversion; for a person is guilty of a conversion who intermeddles with my property and disposes of it, and it is no answer that he acted under authority from another who had himself no authority to dispose of it. And the court is governed by the principles of law, and not by the hardship of any particular case." So in case of factors, where A. consigned the goods of B. to C. and C. without notice of the right of B. sold a part and kept the remainder in his possession, the sale was held to be a conversion. (8 Taunt. 237. 2 Mod. 181. Saund. on Pl. and Ev. 1158.) So trover will lie against a carrier who delivers goods to a wrong person, though by mistake, (Id. 1159); or against a warehouseman for delivery to a wrong person, as when he deliverers goods upon a forged order. (Id. and cases cited.) And it is no answer to the true owner, to say that the person so disposing of the goods was ignorant of his title, and that he disposed of them for the use and benefit of another. In Hoffman v. Carow, (22 Wend. 285,) the authority of the English cases was fully confirmed. It was there held that an auctioneer who sells stolen goods is liable to the owner in an action of trover, notwithstanding that the goods were sold by him and the proceeds paid over to the thief, without notice of the felony. In Williams & Chapin v. Merle, (11 Wend. 80,) the defendant purchased, in good faith, in the regular course of his business as a broker, without suspicion of any infirmity in the title, yet he was holden liable in trover to the true owner of the property. In Thorp v. Burling and others, (11 John. 285,) one of the defendants was a cartman, and although there was some suspicion that he did not exercise sufficient precaution at the time the goods were taken, he was held liable with the others

Dudley v. Hawley.

in trover, for the wrongful taking. Spencer, J. observed: "It is true he did this at the request of other persons; but he was by no means bound to obey their orders, or yield to their request. He was a voluntary agent and an actor in an unlawful transaction." The judge, however, adds: “He could not but perceive it was a hazardous enterprise, from the large assembly of people at the spot." This circumstance did not, I think, influence the decision. In Everett v. Coffin & Cartwright, (6 Wend. 603,) the defendants, in ignorance of the rights of the true owners, obtained possession of the goods from the master of the vessel with whom they were shipped, and by his direction sold them, and they were held liable.

There is a class of cases which hold that the defendant cannot be made liable either in trespass or any other form of action, for simply receiving goods wrongfully delivered to him by the person in actual possession. (See Storm v. Livingston, 6 John. R. 44; Marshall v. Davis, 1 Wend. 111; Nash v. Mosher, 19 id. 431; Barrett v. Warren, 3 Hill, 350; Pierce v. Van Dyke, 6 id. 614.) The result of these cases would seem to be that "while no liability is incurred by the purchase or acceptance of goods, in ignorance of the title of the true owner, unless they are subsequently disposed of to a third person, or appropriated to the use of the vendee or bailee, yet that the benefit of this principle cannot be claimed without proving that they came to his hands through a delivery made by the wrongdoer, and without any participation in the tort of the latter, other than is necessarily implied in innocently receiving that which there is no right to give. (Millspaugh v. Mitchell, 8 Barb. 333. Ely v. Ehle, 3 Comst. 506. 1 Smith's Lead. Cas. 488.) And the better opinion would seem to be that ignorance of the defendant of the wrong done by the person from whom he receives the goods, will not protect him from responsibility for subsequent acts amounting to a conversion or asportation, although done in good faith and without a knowledge of the true state of the title.; (Cobb v. Dows, 9 Barb. 230;) nor unless his

Dudley. Hawley.

share in the transaction has been purely passive and has been limited to accepting and paying for the goods in the usual course of business. (Ely v. Ehle, 1 Smith's Lead. Cases, supra.) But in Stanley v. Gaylord, (1 Cush. 550,) it was announced, without qualification, that "whoever takes the property of another, without his consent, express or implied, or without the consent of some one authorized to act in his behalf, takes it in the eye of the law tortiously." Judge Wilde, however, thought the rule as laid down in the New York cases more accurate than just, (p. 555,) but he was overruled by his associates. I cite this case to show that the rule established by the New York cases is as favorable to the defendant as the law will warrant us in going to sustain his defense. The question was there examined at great length, and with much learning, and it was held that a bailor might maintain an action of trespass against one who took the property from the possession of the bailee, under a mortgage given by the bailee to secure his own debt, without a previous demand; although the defendant was ignorant of the plaintiff's title and took the property in good faith. Wilde, J. who dissented, observed: "The case, therefore, depends upon the question whether one who in good faith obtains possession of goods or chattels from a party in possession, under a sale from him, is liable to an action of trespass by the true owner;' and he agrees with the New York cases that the action of trespass will not lie; but in case of conversion the proper action is trover. The conversion of the property being established, it is immaterial whether it occurred through design, mistake or ignorance, or whether or not it was profitable to the defendant. (Platt v. Tuttle, 23 Conn. Rep. 233. Justice v. Mundell, 14 B. Monroe, 12.)

The defendant having taken the property, and negotiated a sale of it for the benefit of Ashby and wife, must be held liable in this action, although he would have been excused for merely receiving the property into his possession in the ordinary course of his business, if he had not also aided the mort

Dudley v. Hawley.

gagors in disposing of it to other parties. This was an act of conversion, in which the defendant was a voluntary actor, without excuse, except a very laudable desire to accommodate Mrs. Ashby. I think the laws holds him liable to the owner in such a case, although he did not participate in the proceeds. (22 Wend. 235.)

It is, however, claimed by the defendant's counsel, and assented to by the learned referee, that inasmuch as the plaintiff allowed the diamonds to remain in possession of Ashby and wife for a long time, he was guilty of that species of negligence or misconduct which should estop him from now denying the right of Ashby and wife to give the property to the defendant to be sold for their benefit; and that where one of two innocent persons must suffer by the fraudulent acts of a third person, the one who enables such third person to commit the fraud, must bear the loss. But I think the defendant cannot invoke the aid of this principle in this case. The only evidence of misconduct or fraud, consists in his leaving the mortgagors in possession of the diamonds. It is said in 2 Smith's Lead. Cas. 663, that the mere transfer of possession, and even of the indicia of title, to an agent or buyer, will not enable him to give a good title, in the absence of authority to sell. (And see 1 Smith's Lead. Cas. 896, 897.) The bare possession of goods by a bailee has never, as I am aware, been held to confer upon him such an apparent ownership as will estop the true owner from pursuing his action against all those who voluntarily interfere in their subsequent conversion. It appears in this case that the mortgage was duly filed to make it valid as against subsequent purchasers, so that it is not claimed that the title passed to Randall & Bareman on the ground of fraud in the mortgage. The defendant cannot, therefore, protect himself under the title of the purchasers, even if the referee was mistaken in his opinion that the defendant was not in a position to raise such a question. And I am inclined to think the referee was right in this view of the case, unless the evidence should authorize the

Waters v. Langdon.

conclusion that the defendant acted as the agent of the purchasers instead of the vendors. Doubtless this is a hard action, but I do not see how we can relieve the defendant without overturning well settled principles.

The judgment should be reversed and a new trial granted, costs to abide the event.

MULLIN, J. also read an opinion for reversal.

ALLEN, J. concurred.

BACON, J. dissented.

Judgment reversed and new trial granted.

[JEFFERSON GENERAL TERM, October 6, 1863. Allen, Mullin, Morgan and Bacon, Justices.]

WATERS vs. LANGDON.

The act of the legislature to amend an act entitled "An act to revise, amend and consolidate the several acts relating to the village of Whitesborough," (Laws of 1859, ch. 10,) so far as it provides for the election of a police justice by the electors of the village of Whitesborough, and clothes him with the same jurisdiction as a justice of the peace of the town of Whitestown, is unconstitutional.

The case of Brandon v. Avery, (22 N. Y. Rep. 469,) commented on, and distinguished from this case. Per MORGAN, J.

A

PPEAL from a judgment of the county court of Oneida county affirming a judgment of the police justice of the village of Whitesborough. The cause was tried before the police justice of the village of Whitesborough, an officer created by an act passed February 12th, 1859, entitled "An act to revise, amend and consolidate the several acts relating to the village of Whitesborough." (Laws of 1859, p. 13.) The only sections bearing upon the subject are as follows: