Esmay v. Fanning , 9 Barb. 176 ( 1850 )

By the Court, Willard, J.

The gist of this action is the conversion and deprivation of the plaintiff’s property, and not the acquisition of property by the defendant. (3 Barn, Aid. 685.) The general requisites to maintain the action are, property in the plaintiff; actual possession or a right to the immediate possession thereof; and a wrongful conversion by the defendant. (4 Barb. S. C. R. 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 re-delivered the carriage to the plaintiff or his agent, before the commencement of this suit. The plaintiff alledges a refusal to re-deliver it, and the defendant avers that he did re-deliver it. The referee found the fact that the defendant did not re-deliver 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 not authorized to receive it. In Devareux v. Barclay, (2 Bam. & Ald. 702,) it was held that trover will lie for the mis-delivery of goods by a warehouseman, although such mis-delivery was occasioned by mistake only-—-and this court, in Packard v. Getman, (4 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 v. Harbottle, (Peake's N. P. Cases, 49,) and by the English Common Pleas in Stephenson v. Kent, (4 Bing 476.) If trover will lie against a common carrier or a warehouseman for a mis-delivery, 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 con-z version. (Story on Bail. § 414.)

The referee found as a fact that the carriage was not re-delivered 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 -- by 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. (Barns v. Graham, 4 Cowen, 452. Story on Bail. §§ 257, 261, 265.) A delivery elsewhere, without author it 3?, was a conversion. We have not adopted the civil law, which allowed the bailee, in case no place was agreed on, to restore the property to the place from which he took it. (Story on Bail. § 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 Leigh’s N. P. 1483. Bates v. Conklin, 10 Wend. 389. Tompkins v. Haile, 3 Id. 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 of 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 bailments, 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.