Francis H. (Francis Hermann) Bohlen.

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of it to a third party on the production of such receipt, was held in Hiidmon
V. Du Bose. 85 Ala. 446 (1888). since this was the "restoration of the bailor's
dominion by an act, the essential nature of which is in defiance of the true own-
er's title or the^probable consequence of which will be to put the property beyond
his reach," Somervilie, J., p. 448; but see Letttliold v. Fairchild, 35 ^linn. 99
(1886), a bank endorsed over bills of lading to a purchaser upon payment of
drafts attached, and Leonard v. Tidd, 3 Mete. 6 (^Iass. 1841), where a pledgee
delivered the pledge to the pledgor, in order that he might deliver it to a
purchaser from him, the pledgee accepting the purchaser's promise to pay the
price as part payment of the pledgor's debt ; and Parker v. Lombard, 100
IMass. 405 (1868), where the defendant, a warehouseman, rented a warehouse
in which was the cotton in question from one P, who by mistake told him
that the cotton belonged to H ; it was held that he was not guilty of conver-
sion in notifying H to remove the cotton and making delivery to him, since
he, having been "entrusted with the possession merely," had transferred "the
possession in accordance with the directions of the person from whom he
received it, without notice of any better title, and without undertaking to
convey a title."

The mere taking the custody of goods from one having no title thereto
is not a conversion. Peering v. .4usti)i, 34 Vt. 330 (1861).

Mn Metcalf v. McLaughlin. 122 Mass. 84 (1877). the defendant, a team-
ster, carried household goods from one house to another for a mortgagor
thereof, after notice that the terms of the morteage forbade their removal.

In Loring v. Mulcahy, 3 Allen 575 (Mass. 1862), it was held that one re-



152 GURLEY Z: ARMSTEAD.

thority, nor was an}^ cited in the argument ; but the principle on
which the decisions above cited rest is not unreasonably extended
when it is applied to the circumstances of the case at bar. The
act of removing goods by direction of the wrongful possessor of
them is an act in derogation of the title of the rightful owner ; but
the party doing this honestly is protected because from such actual
possession he is justified in believing the possessor to be the true
owner. He does no more than such possessor might himself have
done by virtue of his wrongful possession.^

The defendant was a job teamster, and thus in a small way a
common carrier of such wares and merchandise as could appropri-
ately be transported in his team or wagon. He exercised an employ-
ment of such a character that he could not legally refuse to trans-
port property such as he usually carried, which was tendered to him
at a suitable time and place with the offer of a reasonable compen-
sation. If he holds himself out as a common carrier, he must
exercise his calling upon proper request and under proper circum-
stances. Biickland v. Adams Express Co., 97 j\lass. 124. Judson



ceiving stolen goods as a naked bailee, a mere depositary, and permitting his
bailor to remove them is not guilty of conversion, unless demanded by the true
owner while in his possession; accord, iWelsoffV. Iverson, 17 Ala. 216 (1850) ;
Reinbaugh v. Phipps, 75 Mo. 422 (1882), even though the owner has notified
the defendant of his title, but see Hudmon v. Dii Bose, 85 Ala. 446 (1888),
where it was, also held that the recording of a chattel mortgage is con-
structive notice of the mortgagor's title; in Hill v. Hayes, 38 Conn. 532 (1871),
Loring v. Mulcahy is cited with approval, though the decision was that mere
suspicion that the bailor had no title to the goods did not make their return
to him a conversion and that a charge, that the defendant was guilty, if she
knew the property was stolen when she returned it to the bailor, was suffi-
ciently favorable to the plaintiff, the verdict having been given for the de-
fendant; contra, Powell v. Hoyland, 6 Exch. 67 (1851), and see Hindmarch
V. Hoffman, 127 Pa. 284 (1889), where in an action of indebitatus assumpsit
to recover against one with whom a thief had deposited moneys stolen from
the plaintiff and who had, after the plaintiff's attorney had notified him of
the plaintiff's claim, turned it over to the thief, it was said, p. 289, that "the
defendant did not better his position by improperly handing over the money
to those, who had no right whatever to it, after he knew that it had been
stolen and that the plaintiff was the true owner;" and see Lester v. Delaware,
L. & IV. R. Co., 92 Hun 342 (N. Y. 1895).

^ Where the bailee does no more than change the location of the goods
and not the possession of them, as where he carries goods for one in actual,
though wrongful possession, from one place to another and there redelivers
thtm to him, there is no conversion, see Blackburn, J., in Hollins v. Fowler,
41 L. J., Q. B. 277, and Romer, J., in Barker v. Furlong. 1891 2 Ch. Div. 172,
p. 182; "The carrier and packing agent are generally held not to have con-
verted because by their acts thev merely purport to change the position of the
goods and not the property:" Thorp v. Burling, 11 Johns. 285 (N. Y. 1814),
a cartman who had taken the plaintiff's goods from his possession, acting as
the innocent agent of other defendants would, it was said, not have been liable
had "the other defendants reduced the goods to possession and had Woodruff
(the cartman) then received the goods to carrv;" .Strickland v. Barrett, 20
Pick. 415 CMass. 1838), a teamster who at the request of a mortgagor in pos-
session, carried the goods out of the state and there redelivered them to the
mortgagor, was not guilty of conversion unless he knew the mortgaeor's pur-
pose to deprive the mortgagee of his goods; Smith v. Colby, 67 Maine 169
(1878), semble.



SIMMONS V. SKYES. I53

V. Western Railroad, 6 Allen, 486. His means of ascertaining the
true title of the freight confided to him are of necessity limited. He
must judge of this as it is fairly made to appear. \l Whittier had
actually gone into the room, as he might readily have done, and
taken physical possession of the goods, the defendant upon well
established authority would have been justified in obeying the order,
and transporting the goods to Whittier at another place ; and he
rhould not be the less justified where Whittier, in apparent control
of the goods in his own house, and capable of immediately taking
them into his actual custody by entering the room through the un-
locked door, has directed the removal.

If a person standing near and in sight of a bale of goods lying
on the sidewalk belonging to another, and thus in the legal possession
of such other, is able at once to possess himself of it actually, al-
though illegally, and directs a carrier to remove it and deliver it to
him at another place, compliance with this order in good faith cannot
be treated as a conversion ; and apparent control, accompanied with
the then present capacity of investing himself with actual physical
possession, must be equivalent to illegal possession in protecting a
carrier who obeys the order of one having such control.

Judgment for the defendant.*



(d) Destruction of and injury to chattels.



SIMMONS V. SYKES.
Supreme Court of North Carolina, 1841. 3 Iredell 98.

Trover for a canoe which the plaintiff had lent to the defend-
ant. A witness proved that the defendant had brought the canoe
to the dock of the witness and left it there ; that a short time after-
wards it was missing from the dock and that later he had seen it
some distance off stranded on the beach and broken up.

Daniel, J. This action is Trover. If there be a deprivation



* Accord: Nanson v. Jacob, 93 Mo. 331 (1887) ; White Live Stock Com-
mission Co. V. Chicago, M. & St. P. R. Co.. 87 Mo. App. 330 (1900) : Shclhutt
V Central of Ga. R. Co.. 131 Ga. 404 { 1908) ; Willis. J., Sheridan v. Xew Quav
Co., 4 C. B. (N. S.) 618 (1858), p. 648: Lee v. Bayes. 18 C B. 599 (1856). p.
609, and this even though the carrier do not deliver them to the consignor,
but to a purchaser from him, Shelhiut v. Ry., 131 Ga. 404 (1908) ; but see
Rlackhurn, J., in Hollins v. Fowler, 41 L. J. Q. B. 277. If, however, demand
he made by the true owner a subsequent delivery to the consignor or to his
rrder will be a conversion; Lee v. Boxes. 18 C. B. 599 (1856); Georgia R
& Banking Co. v. Haas, U7 Ga. 187 (1906) : .Atchison. T. & S. F. R. Co. v.
Jordan Stock-Food Co.. 67 Kans. 86 (1896) ; Shellenburg v. Freemont, E. &
M. V. R. Co.. 45 Xebr. 487 ri8Q5) : Wells v. .American E.rpress Co.. 5S Wis.
23 (1882) ; contra. Kohn v. Richmond f-r Danville R. Co.. 2»7 S. Car. 1 (1891),
or even if notice be given of the plaintiff's title, Lester v. Delaiaare, L. &■ W.
R Co., 92 Hun 342 (N. Y. 1895).



154



SIMMONS Z: SKYES.



of property to the plaintiff, it will constitute a conversion, though
there be no acquisition of property to the defendant. Keyworth v.
Hill, 3 B. & A. 687.^ If the property had been lost by the bailee, or
stolen from him, or had been destroyed by accident or from negli-
gence, this action could not have been sustained, but case would have
been the proper remedy. 2 Saund. 47. Packard v. Getman, 4 Wend.
613. Ross V. Johnston, 5 Bur, 2285. To sustain this action of
Trover, the defendant must have been proven to have been an actor
and to have made an injurious conversion, or done an actual wrong.
Salk. 655. Peake 49. The Judge informed the jury, that, if they
were satisfied from the evidence, that the defendant had actually
destroyed the canoe, they might find for the plaintiff. The defend-
ant, however, insisted that there was no evidence, that he was an
agent in the destruction of the property, and, without some evidence
upon this point, the Judge should charge the jury to find for the
defendant. The Judge said there was some evidence of a conver-
sion, the weight of which was left entirely with the jury. It seems
to us that there was some evidence, from which the jury might infer
that the defendant was an agent in the destruction of the property.
The defendant had placed the canoe in the dock of the witness,
which was a place of safety, and a short time afterwards it was
missing, and in two months it was found broken up on the beach. It
is not pretended that the canoe was removed from the dock by the
winds — no presumption arises that the bailor removed it — the bailee
had a right to remove it ; and, in the absence of all other proof, the
jury might presume that he, who had a right to remove, did remove
the canoe, and, the canoe afterwards being found broken up, the
jury might presume, in the absence of other evidence, that it was
broken up by the agency of him, who had the control and manage-
ment of the property. The judgment must be affirmed.

Per Curiam, Judgment affirmed.

^Accord: Kevworth v. Hill, 3 B. & A. 685 (1820), semble; Olds v. Open
Board of Trade. 33 111. App. 445 (1889), cancelation of certificate of member-
ship in Board of Trade; Schreiher v. Finan, 28 Misc. (N. Y.) 560 (1899),
payee of a cheque, lost by or stolen from him, liable to a bona fide holder for
value, if, when the cheque is presented to him for examination, he tears it
up. So any change in the nature of the chattel, as the spinning of cotton,
Blackburn, J., in Hollins v. Fowler, 41 L. J. Q. B. 277, or the cutting up by a
butcher of the carcass of a deer, McPheters v. Page, 83 Maine 234 (1891), or
any alteration of its quality, as by drawing out part of a vessel of wine and
filling it with water, Richardson v. Atkinson, 1 Strange 576 (1723), or in any
way adulterating it, Bench v. Walker, 14 Mass. 500 (1780) ; but a mere injury,
though depreciating the value of the chattel is not enough. Byrne v. Stout, 15
111. 180 (1853), castration of a hog, if not done under a claim of right. Sim-
mons V. Lillystone, 8 Exch. 431 (1853), defendant in digging a sawpit on his
premises cut through a spar embedded in the soil, leaving the pieces there
which were afterwards carried away by the tide. To commingle another's
goods with one's own so that they can not be identified was held in Crane
Lumber Co. v. Bellows. 116 Mich. 304 (1898). to be a conversion; but see
Burn ham v. Marshall. 56 Vt. 365 (1883). It is not necessary that the defend-
ant intended to destroy the goods, it is enough if he do any positive act the
obvious consequence of which will be their destruction, Aschermann v. Philip



POWELL V. SADLER.



155



Best Brciving Co., 45 Wis. 262 (1878), defendant opened the door of a room
in a buildinp purchased by him in which plaintiff's ice was stored, so admitting
warm air which mehed the ice. I'ut the botthng of wine, done to preserve it,
is no conversion, I'liilpot v. Kelley, 3 A. & K. 106 (1835).



(e) Misfeasance by bailees, servants and agents.



POWELL V. SADLER.

At Nisi Prins, 1806. Paley on Principal and Agent, 80 Note (e).

Trover for tlirce horses. Plaintiff had sent the horses to de-
fendant to be sold the next day ; defendant's clerk told him the next
day would not be so good a time to sell them as the following sale
day; in consequence of which the plaintiff said he would send them
back again, which he did the next evening, but they had been sold.^
Li a conversation concerning the sale, the defendant said, "it was a
mistake of his clerk for which he was not answerable." Garrow,
for the defendant, insisted that there was no evidence of a con-
version. Lord Ellenborougii, C. J. I am of opinion that a con-
version has been proved ; the horses were entrusted to the defendant
for a qualified purpose, which he has admitted was not conformed
to. Where, goods are committed to one for a. qualified-purpose, .any_
deviation from it in the disposition of than is a conversion ; "as
if a man borrow a horse to ride, and leave him at an inn, it has been
held to be a conversion."^



^A sale by an agent at any time other than that directed, though at same
price, is wrongful, Clark & Nunnally v. Cuuuning & Co., 77 Ga. 64 (1886),
an action on an open account.

^Accord: Etter v. Bailey, 8 Pa. St. 442 (1848), unauthorized sale by
bailee; Haas v. Damon, 9 Iowa 589 (1859), an agent, authorized to sell goods,
exchanged them for others: Atki)ison v. Jones, 72 Ala. 248 (1882), one hir-
ing a chattel exchanged it for another; Hotchkiss v. Hunt, 49 Alaine 213
(1860); Thrall v. Lathrop, 30 Vt. 307 (1858), bailees for specific purposes
pledged the goods for their own debts, Schcrmer v. Neurath, 54 Md. 491
(1880), similar conduct by gratuitous bailee of bond for safe keeping; Loesch-
man v. Machin, 2 Stark. 311 (1818), hirer of piano sending it to an auctioneer
for sale, semble; Murray v. Burling, 10 Johns. 172 (N. Y. 1813), one en-
trusted with a note to negotiate, in order to raise money for the maker's pur-
poses, after negotiating it appropriated the proceeds; Decker v. Mathczcs, 12
N. Y. 313 (1855) ; Kidder v. Biddle. U Ind. App. 653 (1895), similar facts;
Security Bank v. Fogg, 148 j\Iass. 273 (1889), defendants to whom a note was
sent to place in a special account subject to draft by X, refused to so credit
it but though its return was demanded, negotiated it and credited it to the
plaintiff's general account upon which the plaintiff was largely indebted to the
defendants: JVinner v. Penniman. 35 Md. 163 (1872), a joint owner of a note
entrusted it to the other for collection, he. however, surrendered it to the
maker for cancelation ; Covell v. Hill, 6 N. Y. 374 (1852), one to whom plain-
tiff consigned goods for sale, sold them as goods of a third person: McNear
V. Atwood. 17 Maine 434 (1840), defendant, sent to receive a note for a bal-
ance due the plaintiff, induced the debtor to draw the note to his order and
sold it; Cotton v. Sharpstcin, 14 Wis. 226 (1861), attorney for plaintiff in ex-



156 MARSHALL & MICHEL GRAIN CO. V. KANSAS CITY, FT. S. & M. R. CO.

MARSHALL & MICHEL GRAIN CO. v. KANSAS CITY, FT.

S. & M. R. CO.

Supreme Court of Missouri, 1903. 176 Mo. 480.

Burgess, J.^ On August 5, 1895, Marshall & Antles, of whom
plaintiffs are successors, delivered to the defendant a car of corn
for shipment over its railroad from Joplin to Little Rock, Arkansas,
with instructions on the bill of lading to notify the Little Rock Grain
Company ; Little Rock was not on the line of the defendant's road,
but the agent of the defendant at Joplin, having authority to so do,
contracted with the shippers to transport said car of corn to Little
Rock, and received therefor the entire freight charge and rate be-
tween Joplin and Little Rock, and delivered to the shippers a bill
of lading for said car of corn. The bill of lading showed the receipt
by defendant from Marshall & Antlers of one car of corn said to
weigh 33,375 pounds, "to be transferred over the line of this

(defendant's) railway to and delivered after payment of

freight and advance charges in like good order to the consignee, or
a connecting carrier if the same are to be forwarded beyond the
line of this company's road, to be carried to the place of destination ;



ecution bid in debtor's property for him at sale, took certificate in his own
name and sold it; Fitchett v. Canary, 59 N. Y. Super. (27 Jones & S.) 383
(1890), somewhat similar facts; Laverty v. Snethen, 68 N. Y. 522 (1877), an
agent to whom a note was given to negotiate, with instructions not to let it
get out of his possession, entrusted it to another who discounted it and ap-
propriated the proceeds, see Ross v. Chambers, 1 Baily 548 ( S. Car. 1830). So
it was held in Bell v. Ctimniings, 3 Sneed 275 (Tenn. 1855), to be a conver-
sion for a lessee of a chattel to sub-lease it.

So a vendee of personal property under a conditional sale is guilty of
conversion if he sell it before payment of the price, Rodney Hunt Mach. Co.
V. Stewart, 57 Hun 545 (N. Y. 1890).

Any abuse of a Hmited title is a conversion, as a sale of goods upon which
the seller has a lien, Mulliner v. Florence, L. R. 3 Q. B. Div. 484 (1878). In
America it is generally held that trover lies against a pledgee, who sells the
goods pledged before the loan is due. Berg v. Foster, 42 L. I. 313 (1885), or
without notice to the pledgor; Mullen v. Quinlan & Co.. 195 N. Y. 109 (1909) ;
Learock v. Paxson, 208 Pa. 602 (1904), or for a debt other than that for which
it was pledged. Blood V. Erie Dime Savings Bank, 164 Pa. 95 (1894) ; so re-
hypothication of stock pledged as collateral is a conversion. Van Voorhis v.
Rea, 153 Pa. 19 (1893) ; and no tender of the debt due is necessary to the
maintenance of the action in either case; Mullen v. Quinlan, 195 N. Y. 109;
Learock v. Paxson, 208 Pa. 602, and see Amer. & Eng. Ency. of Law, 2nd
Ed., vol. 28, p. 686, for collection of cases. See, however, Donald v. Suckling,
L. R. 1 Q. B. 585 (1866), repledge, and Halliday v. Holgate, L. R. 3 Ex. 299
(1868), sale by pledgee, contra.

"There must be an entire departure from his (the agent's) authority be-
fore an action for the conversion of the goods can be maintained," Bronson,
J., in McM orris v. Simpson. 21 Wend. 610 (N. Y. 1839), p. 614, so an agent
authorized to sell is not guilty of conversion if he sell for a lower price than
that set by his principal. Sarjeant v. Blunt. 16 Johns. 74 (N. Y. 1819), or sells
on credit when directed to sell for cash. Loveless v. Fowler, 79 Ga. 134 (1887),
the proper remedy being an action on the case.

^ Only so much of the opinion is given as relates to the question of con-
version.



MARSHALL & MICHEL GRAIN CO. V. KANSAS CITY, FT. S. & M. R. CO. 1 57

it being expressly agreed that the responsibihty of this company
shall not extend beyond its own line."

It is said that there was no conversion of the corn by defend-
ant's connecting carrier and that the verdict should have been for
defendant.

The evidence, however, showed that Marshall & Antles had sold
the corn to the Little Rock Grain Company, and not having been
paid for it, and not wishing the corn delivered without receiving
pay, attached a sight draft to the bill of lading, and sent said draft
with the bill of lading attached to a bank in Little Rock for collec-
tion from the Little Rock Grain Company, so that the grain company
could not get the car of corn without paying the draft.

But when the car of corn arrived at Little Rock, the agent of
the Cotton Belt Line, which line of road the defendant selected as
its connecting carrier to Little Rock, delivered the car of corn to
the Little Rock Company, when the Little Rock Company did not
hold the bill of lading for the same, said bill of lading having been
attached to the sight draft which had not been taken up by the Little
Rock Grain Company, the Little Rock Grain Company having re-
fused to pay the draft.

The Cotton Belt Road was protected by a bond of the Little
Rock Grain Company, so that if it became liable on account of de-
livery without the bill of lading it would be indemnified.

After inquiries had been made of defendant railroad company,
plaintiff was notified by the local agent of the defendant company
that the corn had been delivered to the Little Rock Grain Company.
They refused then to have anything further to do with the corn,
which was afterwards redelivered by the Little Rock Grain Com-
pany to the Cotton Belt Railroad Company, which company stored
it in a public warehouse.

There can be no question but that the shipper of the goods
has the right to designate the consignee, or in other words, the per-
son to whom they are to be delivered, and that the carr ieris bound
tg^abpy the^-difectioi Lof the shipper, or to coni p^ ly -j^ HEIjhp tai^m^^-
of his contraet-af-shipmentiii this respect, and If he disobeys them
he is liable-^-s- for a -eonyixsiQn? — (Wiyijins' Ferry Co. v. RaUfoad^

128 Mo. 224; Railroad v. Jlliite, 6 Bush 251.) -V jiiisdeliv eryLby

a carrierof an article intrustcd_tojTimJo_b e carried is a conversion.
{CTaflm V. Railroad, 7 Allen 34iTl3lshop on l^Ion-Contract Law,
§ 405.) Nor does the fact that the railroad company offered to re-
turn the corn after it had been redelivered back again into the cars
furnish any justification for the conversion, though it might be con-
sidered' in mitigation of damaj^es. (Sparks v. Piirdy, 11 ]\Io. 219.)"



" So it is a conversion where a carrier delivers goods to a person not des-
ignated bv the consignor or authorized bv him to receive them; Youl v. Har-
bottle, 1 Peake 68 (1791) : LouisziUc & N. R. Co. v. Barhhousc. 100 Ala. 543;
(1892) : Little Rock. M. R. & T. R. v. GlidczvcU. 39 Ark. 487 (1882) : Caval-
laro v. Tc.vas Pac. R. Co.. 110 Cal. 348 (1895) ; Sou. E.v. Co. v. Van Meier. 17
Fla. 783 (1880) ; Pac. Exf>. Co. v. Shearer. 160 111. 215 (1896) ; McCuUoch v.
McDonald. 01 Ind. 240 (1883) ; Claftin v. Boston & L. R. Co.. 7 Allen .^41
(Mass. 1863) ; Guillauvic v. Hamburgh American Packet Co., 42 N. Y. 212



158 SYEDS V. HAY.

SYEDS V. HAY.

Court of King's Bench, 1791. 4 Term Rep. 260.

Trover for certain goods. The action was brought by the owner
against the captain of the vessel in which they had been shipped;
and the only question was whether there was evidence of a conver-
sion to maintain this action. The goods were left by the defendant
in the hands of one Hawley, a wharfinger, for the plaintiff's use ;
and he might have had them at any time by sending there and pay-
ing the wharfage. But, previous to their being landed on the wharf,
the plaintiff", intending to convey them from the vessel himself, ex-
pressly directed the defendant not to land them there, which the
latter promised not to do, but nevertheless he did so. The defend-
ant, by way of justification for this breach of orders and promise,
attempted to set up a usage that every wharfinger, against whose
wharf a vessel was moored for the purpose of unloading, as in the
present case, was entitled to the wharfage fees for all goods un-
loaded therefrom, whether landed on the wharf or not ; and that
therefore the wharfinger had a lien thereon, of which it was not
lawful to divest him * * * Lord Kenyon was of opinion, on
an objection taken at the trial, that there was no evidence of a con-
version ; for, without laying stress on the supposed usage, the goods
have been dehvered to the wharfinger for the use of the defendant ;



(1870) ; Viner v. New York &c. Steamship Co., 50 N. Y. 23 (1872) ; Security
Trust Co. v. Wells Fargo Co., 81 App. Div. (N. Y.) 426 (1903) ; Oskamp v.
Southern Exp. Co., 61 Ohio St. 341 (1899); Sword v. Young, 89 Tenn. 126
(1890) ; Houston & T. C. R. Co. v. Adams, 49 Tex. 748 (1878) ; IVitislow,
Ward & Co. v. Vermont R. R., 42 Vt. 700 (1870) ; but see Ryder & Mitchell