Esmay v. Fanning , 5 How. Pr. 228 ( 1850 )

By the Court,

Willard, J.

The gist of this-action is the'Corr-version and deprivation of the plaintiff’s property, and not the acquisition of property by the defendant (3 Barn. & Ald. 685).

The general requisites to maintain the action are property dn the plaintiff’s actual possession, or a right to the-immediate possession thereof and a wrongful -conversion by:the defendant (4 Barb. S. C. Rep. 565). The plaintiff’s title was not-disputed in this case. The issue is on the conversion; or, in other words, it is whether the defendant redelivered the -carriage to -the plaintiff or his agent before the commencement of this suit. The plaintiff'alleges-a refusal to redeliver it, and -the defendant avers that he did redeliver it. The referee found the fact that the defendant did not redeliver the carriage to the plaintiff or his agent; and the proof-is that Crocker, to whom the defendant did deliver the carriage in November 1846, was not at that time the agent of the plaintiff or authorized to receive it, and there -is no evidence that the plaintiff ever assented to that delivery. The question therefore becomes narrowed down to this; whether a bailee of a'chattel is answerable in trover on showing a delivery to a person no't authorized to receive it. In Devereux vs. Barclay (2 B. & Ald. 702), it was held that trover will lie for the misdelivery -of 'goods by a warehouseman, •although such misdelivery was -occasioned by mistake only, and this court in Packard vs. Getman (5 Wend. 613), held that the same action would lie against a common carrier who had delivered the goods by mistake to the wrong person. The same point was ruled by Lord Kenyon in Youl vs. Harbottle (Peake N. P. Cases, 49,) and by the English Common Pleas in Stephenson vs. Hart (4 Bingnam, 476). If trover will lie against a common carrier or a warehouseman for a misdelivery, it can, under the like circumstances, be sustained against a bailee for hire or a gratuitous bailee. It results from the very obligation of his contract that if he fails to restore the article to the rightful owner, but delivers it to another person not entitled to receive it, he is guilty of a conversion (Story on Bailment, § 414).

The referee found as a fact that the carriage was not redelivered to the plaintiff, but was delivered to another person having no right to receive it. The evidence detailed in the case warranted that finding and it can not be disturbed by this court. We think the referee drew the right conclusion from that fact and justly held the defendant liable for the value of the carriage.

As the parties all lived in the same city the carriage should have been returned to the plaintiff, unless there was some agreement to the contrary. The fact that the carriage was stored hy the plaintiff in Crocker’s stable at the time the defendant first received it, did not authorize him under a contract to return it to the plaintiff to deliver it to Crocker, who had ceased to be the plaintiff’s agent.

The place of delivery of the carriage was the plaintiff’s residence (Barnes vs. Graham, 4 Cowen, 452; Story on Bailment, § 257, 261, 265). A delivery elsewhere, without authority, was a conversion; we have not adopted the civil law, which allowed the bailee, in case no place was agreed on, to restore the properly to the place from which he took it (Story on Bailment, § 117).

It was not necessary, in this case, to prove a demand and refusal. Had the carriage remained in the defendant’s possession, no action could have been maintained by the plaintiff against the defendant until it had been demanded and the defendant had neglected or refused to return it. A demand and refusal are not a conversion, but evidence from which it can be inferred. A demand is necessary whenever the goods have come lawfully into the defendant’s possession, unless the plaintiff can prove some wrongful act of the defendant in respect of the goods which amounts to an actual conversion (2 L. N. P. 1483; Bates vs. Conklin, 10 Wend. 389; Tompkins vs. Haile, 3 Wend. 406). As the delivery of the carriage by the defendant to Crocker instead of the plaintiff amounted to a conversion; proof of a demand and refusal was unnecessary. The testimony of Nichols, therefore to prove a demand was immaterial and the decision of the referee refusing to permit the defendant to prove what he said at the time the demand was made could have no influence on the result of the cause. Had a demand been necessary the declaration of the defendant in answer to the demand would have been admissible as well on the part of the defendant as the plaintiff. The decision of the referee that a demand and refusal were admitted by the pleadings, whether right or wrong, worked no injury to the defendant.

A wide range was taken on the argument on the implied obligations resulting from the various kinds of bailment, and particularly with reference to the restoring the thing bailed to the bailor. But it seems unnecessary to discuss this subject in this case because here there was an express agreement to return the property to the plaintiff on request. The judgment must be affirmed.