Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

. (page 19 of 124)
Font size
QR-code for this ebook

case harder than that of the defendant in Stephens v. Ehvall can
well be imagined, unless, perhaps, that of a sheriff who seized the
goods which, in consequence of a secret act of bankruptcy, had be-
come the goods of the assignees. He was liable to them in trover ;
see Garland v. Carlisle, 4 CI. & F. 693. The Legislature altered the
law to avoid that hardship, making the loss in future fall on the
assignees ; and the Legislature may, to avoid the hardship on persons
situated like the defendants, extend the protection now given to
purchasers in market overt, and to persons dealing with agents in-
trusted under the Factor's Acts, to brokers dealing with any one in
the ordinary markets. Those who agree with the opinion expressed



HOLLINS V. FOWLER. 1 23

by the Lord Chief Baron, L. R. 7 Q. B. 641, that it is unreasonable
and unjust that they should be bound, at their peril, to inquire into
the title of the sellers with whom they deal, would support an altera-
tion of the law to that effect. Many, having regard to the interest
of the true owners of goods, would object to it. But I think that
the law, as it exists, does not protect such brokers.

The conversion in the case of Stephens v. Ehvall consisted
in assisting in transferring the goods from Deane to the defendant's
master in America, with intent to transfer Deane's de facto prop-
erty to the defendant's master. Deane's title was bad against the
plaintiffs, who were assignees of Spencer, because he had bought
them from Spencer after an act of bankruptcy, though of that the
defendant was ignorant, unavoidably ignorant, says Lord Ellen-
borough.

The conversion in the present case consists in, by means of
the delivery order, tra nsferri ng the goods from Bay^ley to' !Micholls
with intent to transfer de fadtO Bayley's "propertyto Micholls.
Bayley's title was bad against the now plaintiffs, though of that
the defendants were ignorant. I can see no possible distinction be-
tween the two cases. No doubt Stephens v. Ehvall may be over-
ruled in this House, but I do not think it wrong, and no decision
cited, or of which I am aware, seems to me in conflict with it. Ross
v. Johnson, cited by my Brother Brett, is not in point. There the
defendant had received goods as plaintiff's warehouseman. They
were lost, and the ruling of the court was, that though an action
might lie for negligence, if there was any, there was no conversion.
The Lancashire Wagon Co. v. Fitzhugh, 6 H. & N. 502, was
an action for the injury to the reversionary interest of the plaintiffs
in certain goods let to one Pell for a term. The sheriff had seized
and sold those goods under an execution against Pell. He had a
right to sell Pell's limited interest, but none to sell the plaintiffs'
interest, and the question raised, or at least intended to be raised, on
the record was, whether the sheriff had done anything injurious to
plaintiffs' interest. I have failed to see how the decision bears upon
the point now in dispute, except in so far as the decision, that though
a sale is no conversion, a sale and a delivery to one who uses the
goods is, makes against the defendants.

I need hardly say, that where there has been so great a differ-
ence of judicial opinion, I express my opinion with diffidence; but
the reasons I have given lead me to form the opinion I have ex-
pressed, and I therefore answer your Lordships' question in the
affirmative.

Brett, J. In the judgment which in this case I delivered in the
Exchequer Chamber, I endeavored to fix exactly the question Avhich
had to be determined. I did so because I thought, with deference,
that it had been overlooked in the judgments given in the Court of
Queen's Bench. I venture again to draw attention particularly
to the same point, because I think it has been disregarded by some
of the judges in the Exchequer Chamber. In the Queen's Bench,
Alellor, J., says : *Tt is needless to consider now, whether if the



124 HOLLIXS Z'. FOWLER.

defendant Hollins had expressly purchased these goods for Micholls,
Lucas & Co., he would not have had a good defence to this action,
because that point did not, in fact, arise. It would seem that these
goods were bought on speculation, &c. Then, the defendant, being
alone Responsible to the seller, deals with the goods by selling them
to a third party." He then quotes from the opinions of Lush, J.,
and Martin and Chasby, BB. This judgment seems to be founded
on the view that the defendants became principals in the purchase of
the cotton so as to buy as principals from Bayley and sell as princi-
pals to Micholls & Co. It is because all these judgments are founded
upon the same interpretation of the evidence, and of the findingsof
the jury, that I venture, as I have said, to call particular attention
to the direction of Willes, J., to the findings of the jury, and to the
form of the leave reserved. They can be best understood by consid-
ering the course of business with which the judge and jury were
dealing. What is that course of business ?

Liverpool is the cotton mart for Lancashire and Yorkshire. A
Liverpool cotton broker instructed to purchase makes contracts in
Liverpool for the purchase of cotton by his clients in the country
districts. He informs his country client of the completion of the
contract by a bought note forwarded to him in the country. The
cotton is at the time of the contract usually warehoused in Liver-
pool. If the cotton has been bought by sample, or according to
one of the Liverpool known enumerations of kind or quality, the
country client may desire to exercise an opinion on the cotton pur-
chased for him. If so, he requests the broker to obtain for him a
bulk sample, which the broker does, and forwards it. Again, the
country client does not require immediate delivery from the Liver-
pool warehouse: but when later he does, he requests his broker to
forward the cotton. The broker then obtains or signs a delivery
order, and by a carter receives delivery from the warehouse, and
forwards the cotton to a Liverpool railway station. This is done
generally after the broker has had many transactions in cotton
passing through his hands for other clients.^ It is an addition
to the more regular business of brokers, which Liverpool cotton
brokers have undertaken. It was in order to test the legal effect of
this new course of business, and the liability of the brokers who
carry it on, in the case of the immediate seller, through them of the
cotton, being fraudulent or unauthorized to sell the cotton, but such
defect being unknown to the broker, that Willes, J., left two ques-
tions to a Liverpool special jury, first, whether the thirteen bales
were bought by the defendants as agents in the course of their busi-
ness as brokers ; and, secondly, whether they dealt with the goods
only as agents for their principals. I submit, therefore, that the
very foundation of this case is that the defendants made the contract
as agents and brokers only, and that they did not buy or sell
as principals, and that in obtaining the sampling order and sample,
and in obtaining or signing the delivery order, and in receiving and
forwarding the cotton, they acted, so far as knowledge or recollec-
tion and intention went, merely as agents for Micholls, Lucas & Co.,



HOLLINS V. FOWLER. 1 25

to examine for them, to forward to them, goods assumed at the
time to be their goods witliout any reference to the contract by
which the goods became theirs. The question of law is, whether
such deahng with goods can lay a mere agent open to an action
of trover. The question in business, and it is a most important
one for Liverpool, is, whether the cotton brokers of Liverpool
may with safety, so long as they do no more, add to their proper
function of brokers the business of forwarding cotton to the Liver-
pool stations for their clients. If they may, it seems to be an
addition to their business of mere brokers innocent as regards
others, and convenient for them and their clients. If the brokers
may not safely perform this small function of forwarding to the
station, another agent must be introduced by the country principal
to do it, to the great inconvenience of such principal.

The real question, which I cannot doubt it was the intention of
Justice W'illes to have discussed, is, whether every actual dealing
with a chattel^, a manne£ inconsistentwItlTTTiF rightr5f7ar-4H*s — '
owner gives Jo the true owner aTnglTt^of action in trover against
Tvery person so d^ealihg^'^xcepTa common xarrier, or whether -the —
dealing with thej:hattel, in order to support against him who has
dealt with it an acli on ~of "Trover, muslTnot^tie wit"h IntentioirTo^
interefere with the property in the chattel. rT)elieVe that he de- -
sired to have set at rest the divergence of opinion on this point
between Baron Alartin and the other barons in the case of Biir-
roiighes v. Bayne. In that case Baron ]\Iartin says: "But the word
'conversion,' by a long course of practice, has acquired a technical
meaning. It means detaining goods so as to deprive the person en-
titled to the possession of them of his dominion over them." Farther
on he explains what he intends by this. He quotes from the judg-
ment of Alderson, B., in Foiddes v. IVilloiighby, thus : "Any aspor-
tation of a chattel for the use of the defendant or a third person
amounts to a conversion, for this simple reason, that it is an act
inconsistent with the general right of dominion w^hich the owner of
the chattel has in it, who is entitled to the use of it at all times and
in all places. When, therefore, a man takes that chattel, either for
the use of himself or another, it is a conversion." "I," says ]\Iartin,
B., "entirely accede to this view of the law, which is simple and of
easy application." It is obvious that Martin, B., took a very large
view of the term "conversion." And that the question of the right
interpretation of the term is very important, for upon it may depend
whether a defendant is to be held liable in trover for the full value
of the chattel in dispute or in trespass for perhaps only nominal
damages. In the same case of BurrongJics v. Bayne, Channell, B.,
says : "I desire it to be understood that I do not mean to state, or
suggest that every detention is a conversion ; I guard myself against
any such supposition. Every asportation is not a conversion, and
therefore it seems to me that every detention cannot be a con-
version. If it were, the mere removal of a chattel, independentlv
of any claim over it in favor of the party himself, or any one else
whatever, would be a conversion. The asportation of a chattel



126 HOLLINS v. FOWLER.

for the use of the defendant or third person amounts to a conver-
sion, and for this reason, whatever act is done inconsistent with the
dominion of the owner of a chattel at all times and places over that
chattel is a conversion. On the other hand the simple asportation
of a chattel, without any intention of having further use of it, though
it may be a sufficient foundation for an action of trespass, is not
sufficient to. establish a conversion." Bramwell, B., says: "It cer-
tainly is not every detention of goods, although there is no right to
detain them, that is a conversion, in my judgment at all events."
Again : "The result is, you must in all cases look to see not whether
there has been what niay be called a withholding of the property,
but a withholding of it in such a way as that it may be said to be a
conversion to a man's own use." Again: "If I am to be considered
as having wrongfully detained them, though you went away and sent
for them the next morning, your damages are a farthing. Instead of
which, by the use of the word 'conversion,' the defendant is made
liable for the value of the billiard table which he cannot recover
from any one else. Therefore, on consideration of all the facts, had
I been one of the jury, I should have found that there was not an
assertion of dominion inconsistent with the title of the plaintiff," &c.
In the judgment in the Exchequer Chamber, Martin, B., repeated
the same view of a conversion which he had stated in Burroughes y.
Bayne : "But as regards the action of trover," he says, "I think it is
well settled that the assumption and exercise of dorninion-— and
asportation is an exercise of dominion — over a chattel, inconsistent
with the title and general dominion which the true owner has in and
over it, is a conversion, and that it is immaterial whether the act
done be for the use of the defendant himself or of a third person."
Now the greater part of the propositions thus enunciated by Mar-
tin, B., are identical with the propositions of the other judges. All, I
think, agree that the assumption and exercise of dominion over a
chattel, inconsisent with the title of the true owner, is a conversion.
All would agree that the detaining goods so as to deprive the per-
son entitled to possession of them or his dominion over thern is a
conversion, if by the word "dominion" in the last proposition is
intended "title as owner." The essential difference between the view
of Baron Martin and the other judges I have mentioned is in the
sense in which this word "dominion" is used by him and them.
When Baron Martin speaks of interfering with the dominion of the
true owner, he means interfering with the mere possession or right
of possession of the owner. The other judges mean an interference
or dealing with, or doing some act in negation of, the title as owner,
of the true owner. Baron Martin holds that every asportation or
detention which cannot be justified, i. e., which is not done for the
true owner, is a conversion. Baron Channell and Baron Brarnwell
hold that a mere simple asportation or detention is not of itself
a conversion, but only when either is done in a manner or with an
intention inconsistent with the proprietary title, as owner, of the
true owner. If the findings of the jury in the present case are tobe
treated as I have suggested they should be treated, then the question



HOLLINS f. FOWLER. 1 27

in this case is, what is the proper definition of the term "conversion"
in a case in whicli an asportation of the chattel is reHcfl on as the
conversion? If tlic first finding is to be treated as a binding decision
that tiie defendants in making the contract acted only as brokers,
so that they did not themselves buy the cotton as buyers, and so that
they did not sell it as sellers, then what they thus did is clearly, I
think, no conversion. The reasons for this I gave in my judgment
below. If the second finding is treated as a decision that the asporta-
tion was a mere simple asportation, made without intention of or
relation to interference with any one's title, then such asportation
is no conversion unless the definition of ^lartin, B., is preferred
to that of Barons Bramwell and Channell. It cannot fail to be ob-
served that the definition of Martin, B., includes the cases of a
carrier, wharfinger, warehouseman, and packer, even when there is
no demand and refusal ; and that in order to meet the difticulty, he,
in his judgment in the Exchequer Chamber, declares that the case of
a carrier is to be excepted, because he is bound by law to receive and
carry the goods of every one wdio brings goods to him ; and that
the case of a packer is not properly an exception, and that the case
of Grecnzi'ay v. Fisher is wrongly decided. I endeavored in the
Exchequer Chamber to explain all the cases which are called excep-
tional, by showing that the definition of a conversion laid down by
Bramwell and Channell, BB., is the correct definition, and that if so,
the cases referred to are properly decided, not because they are
exceptions to, but because they are outside the rule. I cannot
assist much farther upon this point than I endeavored to do in
that judgment, to which I beg to refer. In addition, however, I
may say that in Simmons v. Lillystone, Parke, -B., says : "Here the
defendant never intended to take to himself any property in the
timber," and, "We are all of opinion that there was no sufficient
evidence of a conversion. In order to constitute a conversion there
must be an intention of the defendant to take to himself the property
in the goods, or to deprive the plaintiff of it." If the last phrase
be expanded, it clearly means "or to deprive the plaintifif of the
property in the goods." I conclude, therefore, as before, that the
defendant cannot be properly made liable in trover on the first
part of the leave reserved in this case, because he was acting only
as a broker, to make a contract between other parties, and none with
himself ; nor on the second part of the leave reserved, because the
court was bound to treat the asportation, which was relied on as an
actual conversion, as a simple asportation made without intent to
interfere in any manner with the title of or ownership in the cotton.
I cannot agree with the view which seems to me to be expressed by
Martin, B., in BurrougJics v. Baync, that the action of trover is
equivalent to an action of trespass, and was invented in order to
replace the action of detinue, avoiding only the right of the defend-
ant to w^age his law. I believe that it was invented in order to
provide a remedy in damages, where there has been a trespass, and
more than trespass to goods, namely, acts done with the intention of
transferring or interfering with the title to or ownership of them.



128 HOLLINS c'. FOWLER.

or where without an original trespass there have oeen acts done with
the intention of transferring or interfering with the title to or own-
ership of them, or which have been done as acts of ownership of
them. I am still of opinion that a possession or detention which
is a mere custody or mere asportation made without reference to
the question of the property in chattels is not a conversion. I answer
your Lordships' question by saying that in my opinion the judg-
ments in the Court of Queen's Bench and Exchequer Chamber
ought to be reversed, and that judgment in the action ought to be
entered for the defendants.

Lord Chelmsford. j\Iy Lords, * * * I think the judgments
of the Court of Queen's Bench and of the Exchequer Chamber are
right and ought to be affirmed.

Judgment of the Court of Exchequer Chamber affirmed.^



^Accord: Fort v. Wells, 14 Ind. App. 531 (1895), two brokers, one of
whom sold chattels for a thief and turned over the proceeds to him, and the
other bought them for and shipped them to his principal, held guilty of
conversion; Bercich v. Marye, 9 Nev. 312 (1874), broker selling mining stock
for customer, in ignorance of the latter's lack of title; Anderson v. Nicholas,
5 Bosworth Super. Ct. Rep. 121 (N. Y. 1859) ; Williams v. Merle, 11 Wend.
80 (N. Y. 1833), produce broker who purchased goods, received the inspector's
certificate, took the goods from the inspector's office and shipped them to his
principal. So commission merchants are guilty of conversion if they, as agents,
buy and pay for the chattels, receive the shipping documents and have the
chattels shipped to their principals, Cassidy Bros, v. Elk Grove etc. Co., 58 111.
App. 39 (1894) ; Arkansas City Bank v. Cassidy, 71 Mo. App. 186 (1897). So
auctioneers are guilty of conversion if they sell and deliver the chattels for one
having no title thereto. Consolidated Co. v. Curtis, L. R. 1892, 1 Q. B. 495 ;
Cochrane v. Rvmill, 40 L. T. (N. S.) 744 (1879) ; Ganh v. Ledwidge, Ir. R. 10
C. L. 32> n876) ; Johnston v. Henderson, 28 Ont. Rep. 25 (1898) ; Hoffman v.
Carow, 20 Wend. 21 (N. Y. 1838), 22 Wend. 285 (N. Y. 1839) ; Swim v. Wil-
son, 90 Cal. 126 (1891) ; Robinson v. Bird, 158 Mass. 357 (1893) ; Kearney v.
Glutton, 101 ]\Iich. 106 (1894) ; a fortiori, where the auctioneer has notice of
the plaintiff's claim of title, Milliken v. Hathaway, 148 Mass. 69 (1888) ; Ire-
dde \. Kendall, 40 L. T. (N. S.) 362 (1878) ; contra, Friczell v. Riindle, 88
Tenn. 396 (1889).

As to an auctioneer taking no part in the delivery of the chattels, but
merely arranging the sale, see Consolidated Co. v. Curtis, L. R. 1892, 1 Q. B.
495 ; and cases cited in Note 1 thereto.

So a servant is guilty of conversion if he, acting for his master's benefit
and by his orders, sells another's goods, Perkins v. Smith, 1 Wilson 328 (1752).
or pledges them, Parker v. Godin, 2 Strange 813 (1728), or if he, on behalf of
his master, receives possession of goods sold to his master and turns them
over to him. Stephens v. Elwall, 4 M. and S. 259 (1815) ; Gage v. Whittier, 17
N. H. 312 (1845), though here the servant had himself arranged the sale (see
Biirditt v. Hunt, 25 Maine 419 (1845), where a servant, who had been sent by
his master to carry to the latter goods bought by him, was held not guilty of
conversion), or who by his master's command takes goods from the owner's
possession. Thorp v. Burling, 11 Johns. 285 (X. Y. 1814) ; Lee v. Mathews, 10
Ala. 682 (1846) ; Miller v. Wilson, 98 Ga. 567 (1896) ; Warder, Bushnell & Co.
v. Harris. 81 Iowa 153 (1890) ; or otherwise does any act which if done by the
master would constitute a conversion, Donahue v. Shippee, 15 R. I. 453 (1887),
cutting plaintiff's grass by mistake: Elmore v. Brooks, 6 Heisk. 45 (Tenn.
1871), railroad agent, under orders of superintendent, refused to deliver goods
to consignee.

See also, Jelks v. Hayward, L. R. 1905 2 K. B. 460, high sheriff selling
goods seized by him in execution ; Fine Art Society v. Union Bank, L. R. 17



VARNEY V. CURTIS. I29

VARNEY V. CURTIS.

Supreme Judicial Court of Massachusetts, 1913. 213 Mass. 309.

This is an action for the conversion of certain bonds, among
others four Northern Pacific-Great Northern joint bonds.

LoRixG, J. So far as now material the facts found by the
judge were as follows: The plaintiff's husband died in February,
1902. Some of the securities here in question came to her under
her husband's will and some of them had been owned by her before
his death. Soon after her husband's death these bonds were deliv-
ered by the plaintiff to her son-in-law, Symonds by name, a stock-
broker, to be kept by him for her in his safe deposit box. In April,
1902, the son-in-law opened an account with the defendants for the
sale of stocks and bonds on margin and delivered to them as security
for that account, inter alia, four of the plaintiff's Northern Pacific-



Q. B. D. 705 (1886), bank collecting for depositor post office order with forged
endorsement, (for cases where bank has collected checques for depositors and
placed proceeds to their accounts, see Grant on Banking, 6th Ed., p. 45, and
Kaufman v. State Savings Bank, 151 Mich. 65 (1908)) ; Koch v. Branch, ^A Mo.
542 (1869), presentation and collection of a government voucher for a brother,
who had innocently purchased it from a thief, held a conversion, though the
proceeds were turned over without deduction of commission : Kimball v. Bil-
lings, 55 Maine 147 (1867), grocer, to oblige customer, sold bonds for her with-
out compensation; ]Ving v. Milliken, 91 Maine 387 (1898), defendant, as agent
for his brother, sorted goods for sale and sold a part ; McPheters v. Page, 83
Maine 234 (1891), butcher cut up into steaks, etc., adeer^illegany seized and
assisted the officer who had seized it to deliver therriTs presents'to hrsiriends;
Dudley v. Ilawley, 40 Barb. 397 (N. Y. 1863), jeweler selling jewels for a pa-
tron; Flanders v. Colby, 28 N. H. 34 (1853), defendant assisted a friend to
carry off and conceal his property in order to defraud creditors, in ignorance
of achattel mortgage thereon ; and see Walker v. First National Bank, 43 Ore.
102 (1903), a bank received a bill of lading, forwarded it to the consignee and
received the money for the goods before they were delivered, held no conver-
sion.

It was, however, held in Lcuthold v. Fairchild et ah, 35 IMinn. 99 (1886),
that "an agent or servant who. acting solely for his master or principal, and by
his direction and without knowing of any wrong, or being guilty of gross neg-
ligence in not knowing it. disposes of, or assists the master to dispose of, is
not thereby rendered liable for the conversion of the property," Gilfillan, C. J..
pp. 111-112. In that case the defendant was the agent and wheat inspector of
the owner of a grain elevator who had tortiously sold the plaintiff's wheat and
assisted in all the sales. So in Hodgson v. St. Paul Plow Co.. 78 Minn. 172
(1899), a servant who receives and disburses a trust fund under the direction
of his master held not guilty of conversion, but if the agent applies the pro-
ceeds to his own benefit he is liable, Dolliff v. Robhins. 83 Minn. 4<^8 (1001),