Francis H. (Francis Hermann) Bohlen.

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V. Burlington, C. R. & N. R. Co., 51 Iowa 460 (1879). Such misdelivery is a
conversion if made by a warehouseman, Devcreux v. Barclay, 2 B. & Aid.
702 (1819) ; Brtihl v. Coleman, 113 Ga. 1102 (1901), the defendant, a railroad,
had become a mere warehouseman, the goods having been tendered to the
consignee and refused by him. Security Trust Co. v. Wells Fargo Co., 81 App.
Div. (N. Y.) 426 (1903), semble, or by any other voluntary bailee — as in
Rowing v. Manly, 49 N. Y. 192 (1872), a broker who delivered bonds de-
posited with him to his customer's wife — gratuitous or for hire, Coykendall
V. Eaton, 55 Barb. 188 (N. Y. 1869) ; or by an involuntary bailee, as a person
to whom goods have been mistakenly consigned and who, in good faith and
with the intent to expedite their return to the consignor, delivers thern to a
third party on his assurance that he will forward them to the consignor,
Hiort V. Bott, L. R. 9 Ex. 86 (1874) — (see also, Louisville & N. R. Co. v.
Fort Wayne Electric Co., 108 Ky. 113 (1900), aliter where such involuntary
bailee in "good faith delivers them to one who exhibits apparently valid au-
thority from the consignor).

So it is held a conversion for a carrier receiving goods for shipment by
connecting lines, to varv the designated route, Wiggins Ferry Co. v. Chicago
& A. R. Co.. 128 Mo. 224 (1895). or the designated method of transportation,
at least of live stock, McKahan v. American Exp. Co., 209 Mass. 270 (1911),
or to carry fire-arms and ammunition, to another destination in order to pre-
vent the consignee from getting possession of them, thinking that they would
be used in mob violence during a strike, Baltimore & O. R. Co. v. O'Don-
nell. 49 Ohio St. 489 n892) : so one volunteering to receive monev for
another and carry it to him and entrusting it to third party who stole it was
held guilty of a conversion in Colyar v. Tavlor, 1 Cold. 372 fTenn. I860],
and in Fitzgerald v. Burrill, 106 IMass. 446 (1871), it was held conversion for



SYEDS Z'. HAY,



159



and that the proper remedy against a carrier for not delivering
goods pursuant to orders was by action on the case ; but he never-
theless permitted the cause to proceed; reserving this point for the
consideration of the Court. The verdict was given for the plaintiff.
And a rule having been obtained to shew cause why the verdict
should not be set aside, and a non-suit entered.
Boxvcn and Kidd now showed cause.
Erskine, Mingay, and Lazves, contra, admitted, that demand and
refusal were prima facie evidence of a conversion, till explained,
but no more; for if conversion be not actually found on a special
verdict in trover, judgment must be for the defendant. Now here
the refusal was satisfactorily explained ; for the goods were deliv-
ered to the wharfinger expressly for the use of the plaintiff; and
therefore his right to them, so far from being denied, was recog-
nized. The delivery to the wharfinger was in the usual course of
trade. There was no evidence of its being done collusively ; and if
done bona fide under an idea, whether well or ill founded, of a right
in the wharfinger, trover, which is founded on a tort, will not lie ;
but the plaintiff has his remedy by an action on the case against the
carrier for a misdelivery. The wharfinger may even be considered
as the agent for the plaintiff' ; and all the cases of this kind, where
trover has been maintained, such as Perkins v. Smith, and Cooper
V. Cliitty, have been either where the property has been altered by
an actual sale, or the denial has been grounded on an assertion of



a post-office clerk told to register a letter containing money, to send it un-
registered ; but to permit an unauthorized inspection by an intending purchaser
during the carriage is not a conversion though a sale is thereby prevented,
Dudley v. Chicago, M. & St. P. R. Co., 58 W. Va. 604 (1906).

Where the carrier carries out the consignor's order and delivers to the
person intended by the consignor, though the goods have been ordered and
consigned to him by a fictitious name, it is no conversion, The Drew, 15 Fed.
826 (1883) ; Wilson & Co. v. Adavis Exp. Co., 27 Mo. App. 360 (1887) ; Ed-
miDids v. Merchants' Despatch Co., 135 Mass. 283 (1883), here the order was
given by the swindler in person; Samuel v. Cheney, 135 Mass. 278 (1883),
order given by letter; M'Kean v. M'lver, L. R. 6 Ex. 36 (1870) ; contra: Pa-
cific Exp. Co. V. Shearer, 160 111. 215 (1896) ; IVinslow, Ward & Co. v. Ver^
mont R. Co., 42 Vt. 700 (1870); American Exp. Co. v. Stack, 29 Ind. 27
(1867). In some cases it is held that where the person named as consignee
is well known it is a conversion to deliver it to another personating him both
in the ordering and getting possession of the goods, without requiring satis-
factory identification, Pacific Exp. Co. v. Critzer, 42 S. W. 1017 (Tex. Ct. of
App. 1897) ; Pacific Exp. Co. v. Hertzherg, 17 Tex. Civ. App. 100 (1897) ; Os-
kamp V. Ex. Co., 61 Ohio St. 341 (1899).

A carrier or other bailee is not guilty of conversion in not resisting the
taking of his bailor's goods from his possession bv the police, Baltimore &
O.R. Co. V. O'Donnell, 49 Ohio St. 489 (1892), or' by the health authorities.
Niacjara Fire Insurance Co. v. Campbell Stores, 101 App. Div. (N. Y.) 400
(1905), affirmed 184 N. Y. 582 (1906), hides removed from burnt building by
order of Board of Health or by superior force, Abraham v. Nunn, 42 Ala.
51 (1868), cotton taken from warehouse by armed men sent by United States
Treasury Officer, or by officers acting under apparently valid legal process,
Traylor v. Hughes, 88 .-Ma. 617 (1889), or even in opening the doors of build-
ing or room in which the goods are stored. Clegg v. Boston Storage Co.. 149
Mass. 454 (1889), if the seizure be not bv its procurement or connivance, Bal-
timore & O. R. Co. v. O'Donnell, 49 Ohio St. 489 (1892).



l60 DISBROW Z'. TENBROECK.

property in some other person. But they are not applicable to the
present case.

Lord Kenyon, Ch. J. — It is clear that the plaintiff is entitled to
recover either against the defendant or the wharfinger; and if no
wharfage be due, of which there was no satisfactory evidence, I
think that this action may be maintained against the defendant.

Ashhurst, J. — If the wharfage duty be not due, it is clear
that trover will lie against the defendant. Or even if the defendant
landed the goods on the wharf with the view of sheltering himself
from the payment of the moorage-duty, that also would subject him
to this action.

Buller, J- — I am of opinion that the objection to the form of
the action is not well founded. For the plaintiff gave express
orders to the defendant not to land the goods on the wharf, to which
the latter agreed at the time, but afterwards disobeyed those orders
and delivered the goods into the possession of the wharfinger ; now
on these facts I think that trover will lie. I cannot go on the ground
that the wharfinger was the plaintiff's agent ; for, so far from it,
the plaintiff' expressly dissented to the goods being sent there. And
_if_o ne man, w ho is entrusted withjthe goods of another, put them
into the hands' of 1l ThTrd person contrary to orders, it is a conyer-
"Hioni If a persoft-take-ray horse to ride, and leave him at an inn,
that is a conversion ; for though I may have the horse on sending
for him and paying for the keeping of him, yet it brings a charge
on me. So here the defendant by putting these goods into the cus-
tody of the wharfinger brought a charge on the plaintiff. And this
is a deliberate act, it being done contrary to the orders of the owner,
and therefore distinguishable from the case put at the bar of a
misdelivery of goods, merely owing to a mistake. So stands the
case independently of the evidence respecting the wharfage ; but
that is very material to be considered ; because if the wharfage-duty
be due, that will be an answer to the present action. The usage set
up at the trial does not appear to be uniform; for, though several
of the witnesses said that in their opinion it was due, yet opinion is
no evidence, and in point of fact the duty has not always been paid
in cases where the goods were not landed. The case in Bl. Rep.
goes a great way to prove that no such payment can be exacted.

Grose, J. of the same opinion.

On a subsequent day Lord Kenyon said, that the Court had
fully considered this case, and were of opinion that no trial ought
to be granted, and that the rule should be discharged.

Per Curiam. Rule discharged.



DISBROW V. TENBROECK.

Court of Common Pleas of City of New York, 1855. 4 Smith 397.

Dx\LY, J. The justice has found that the defendant hired the
horse to go to Harlem, and his finding upon the question of fact is
conclusive. The defendant rode the horse, not only to Harlem, but



DISBROVV Z'. TENBROECK, l6l

to Kinj^sbridfi^e, which is six miles farther. This was a violation of
his contract. It was a conversion of the property, and he became
liable therefor to the plaintiff.

The case is, in this respect, the same as IVheelock v. Wheel-
right, 5 Mass. 104, where the defendant hired a horse to go on an
equal distance, and to return at a time mentioned by defendant ; but
he went beyond that distance, and the horse died, without being
rode immoderately or other neglect of the defendant. In that case,
Chief Justice Parson said, "the defendant, by riding the horse be-
yond the place for which he had liberty, is answerable to the plaintiff
in terms. For thus riding the horse is an unlawful conversion."
He further remarked that, had the horse been returned, it might
have been shown in mitigation of damages, but not having been re-
turned, the plaintiff' was entitled to recover the value of the horse
as damages.

The principle recognized in this case is as old as the law. The
engagement, says Domat, Book i, tit. 4, § 2, art. i, of the person
who takes anything to hire, is to put the thing to no other use than
that for which it is hired. A borrower and a hirer are answerable
in all events, says Sir William Jones, if they use the thing differ-
ently from their agreement. (Jones on Bailment, 121.) And this
case is put by Lord Holt, in Cogg v. Bernard, 2 Lord Ray. 915. If
a man should lend another a horse to go westward, or for a month,
and the bailee go northward, or keep the horse above a month, and
any accident happen to the horse on the northern journey, or after
the expiration of the month, the bailee will be chargeable ; because
he has made use of the horse contrary to the trust he was lent to
him under, and it may be if the horse was used no otherwise than
he was lent, the accident would not have befallen him.^ He is speak-
ing of gratuitous bailees, but in this respect there is no distinction
between a borrower and a hirer. Either would be liable upon vio-
lating the condition upon which the horse was loaned or hired.
(Jones on Bailment, &c., 121 ; Story on Bailment, §§ 232, 233, 413.)



^ But see Lee v. Atkinson, Croke Jac 236 (1610), where it was held that
a bailor was not justified in seizing a horse which his bailee had hired for two
days to ride from Gravoscnd to NettleI)od and had ridden it to London', for
during the time for which he had hired it, the bailee "had a special property
in him against all men, and in case the plaintiff (the bailee) had misused the
said horse, the defendant, Atkinson (the bailor), might have brought his
action in the case against him."

A variety of other reasons are given : 1st, "The invasion of the plain-
tiff's right is as complete, when the bailee goes beyond his license and duty,
as if the control over the chattel were usurped without anv bailment," Perlev,
J., in Woodman v. Hubbard, 25 N. H. 67 (1852). p. 71; Green. J., in Horsely
V. Branch, 1 Humph. 199 (Tenn. 1839), p. 208; (but the mere use of a chattel
by one who has possession unlawfully and without authority of the owner is
not ordinarilv a conversion) Frame v. Dennis, 45 N. J. L. 515 (1883) ; Fifield
v. Maine Central R. R., 62 Maine 77 (1873) ; and see Ak'ord v. Davenport, 43
Vt. 30 (1870). 2nd. "The owner may rescind the contract, or treat it as
never existing and bring trover," Goldthwaite, J., Moscly v. Wilkinson. 24
Ala. 411 ( 1854), p. 416; but see the able and vigorous opinion of Gibson, C. J.,
in Wilt V. Welsh. 6 Watts 9 (Pa. 1837) ; and Moncure, J., in Harve\ v. Epes,
12 Grat. 153 (Va. 1855).

11 — Bohlen's Cases, Vol. T.



l62 DISBROW V. TENBROECK.

The defendant, in this case, having used the horse to an extent not
permitted by the contract of hiring, and the horse having sickened
and died before he could be brought back to the plaintiff, the
plaintiff' was entitled to recover the full value of the animal, which
appears, by the evidence, to be the amount for which the justice
rendered judgment."

To entitle the plaintiff to maintain the action ; it was not neces-
sary that he should have tendered back to the plaintiff the amount
received for the hire of the horse. Where contracts of sale are
repudiated upon the ground that a fraud has been practised upon
the seller, and the seller seeks the restoration of the property he
has parted with, or its value, he is bound to restore, or at least to
offer to restore, upon the trial, whatever he has received from the
party fraudulently contracting with him. But this is a very differ-



^ Accord: Ledbetter v. Thomas, 130 Ala. 299 (1900), mule hired to plow
in two-mule team, used in three-mule team and on day after bailment was
over; Welch v. Mohr, 93 Cal. 371 (1892), facts similar to those in principal
case; Malone v. Robinson, 77 Ga. 719 (1886), under Sections 2089-2090 of the
Georgia Code; Marfan v. Gloster, 46 Maine 520 (1859) ; Perham v. Coney, 117
]\Iass. 102 (1875) ; Fisher v. Kyle, 27 Mich. 454 (1873) ; Woodman v. Hubbard,
25 N. H. 67 (1852) ; Hart v. Skinner, 16 Vt. 138 (1844) ; De Voin v. Mich.
Lumber Co., 64 Wis. 616 (1885) ; Brown v. Baker, 15 W. N. C. 60 (C. P. Mer-
cer Co. Pa. 1884), but see Wilt v. Welsh, ante n. 1, and Penrose v. Curren, 3
Rawle 351 (1832).

In the following cases trover was held to lie for slaves hired for one use,
generally house servants, and put to another, generally field labor; Hooks v.
Smith, 18 Ala. 338 (1850); Moseley v. Wilkinson, 24 Ala. 411 (1854);
Horsely v. Branch, 1 Humph. 199 (Tenn. 1839) ; Vanleer v. Fain, 6 Humph.
104 (Tenn. 1845), violation of condition that slave must not be taken out of
the county; Spencer v. Pilcher, 8 Leigh 565 (Va. 1837), a slave hired as a
farm hand employed upon a water journey in the course of which drowned ;
but see Harvey v. Epes, 12 Grat. 153 (Va. 1855), p. 178, in which it is held
that "the act of misuser, to be a conversion must occasion the loss of the
property or be done with the actual intent to convert it," that is, to injure the
bailor's reversionary interest. But the deviation must be wilful and not by
mere mistake, Hart v. Skinner, 16 Vt. 138 (1844) ; Spooner v. Manchester, 133
Mass. 270 (1882), the defendant lost his way and then, instead of returning
to his starting point, took what he thought the best way to his destination.
Mere neglect, or abuse, though it injures or destroys the property. Swift v.
Moseley, 10 Vt. 208 (1838), p. 210: Patch v. Hawes, 12 Pick. 136 (Mass.
1831) ; Keith v. DcBussigney, 179 Mass. 255 (1901) ; but see contra Frost v.
Plumb, 40 Conn. Ill (1873) ; or a mere delay in a journey, to be made with-
out stopping, though it increase the duration of the bailment, Evans v. Ma-
son, 64 N. H. 98 (1886), is not a conversion unless so extreme as to obvi-
ously tend to injure or destroy the chattel ; Wentworth v. McDuffie, 48 N. H.
402 (1869), horse immoderately driven on proscribed route. There must be
a clear and material departure from the use contemplated by the bailment,
and the tendency of later cases is to allow the hirer considerable latitude in
the use of the article unless the specific use is expressly prohibited, or the pre-
cise nature and extent of the use clearly agreed upon, Weller &■ Co v. Camp,
169 Ala. 275 (1910) ; Keith v. DeBussigney, 179 Mass. 255 (1901).

It is conversion for the bailee to make a sublease of the chattel. Bell v.
Ctimmings, 3 Sneed 275 (Tenn. 1855) ; Crocker v. GuUifer, 44 Maine 491
(1858).

If the deviation be a conversion, the defendant should be liable for the
value of the chattel at that time and it is immaterial whether its subsequent
destruction or impairment was due to his misconduct or to inevitable accident,



DISBROW V. TENBROECK. 163

ent case. Here the plaintiff was entitled to the amotint received for
the hire of the iiorse, and to a return of the horse. lie brings his
action against the plaintiff for converting his property — for not
returning it; and he may recover for the injury sustained by the
conversion, and also keep what was agreed upon between the par-
ties, and received as an equivalent for the use of the horse.^

WooDRUir, J. — I concur with Judge Daly in the general rule
stated by him, that the unauthorized use of the horse by the defend-
ant for a purpose not warranted by the contract of hiring, was, in
judgment of law, a conversion — the horse not having been in fact
returned and accepted by the plaintiff. If there is nothing more
proved, the defendant was liable for the value of the horse in the
condition in which he was when the defendant received him.

But I am not satisfied that a subsequent acceptance of an addi-
tional compensation for the hire of the horse, with knowledge that
the defendant had rode him a farther distance, would not amount
to a waiver of the tort. If one hire a horse to go ten miles, and
rides or drives him twenty, and the owner, with knowledge thereof,
accepts an extra compensation for the additional use, he assents



or its bad qualities or condition, Per ham v. Coney, 117 Mass. 102 (1875), Lucas
v. TurnbnU, 15 Gray 306 (Mass. 1860) ; contra, Harvey v. Epes, 12 Grat. 153
(Va. 1855) ; King v. Shanks, 12 B. Mon. 410 (Ky. 1851), one employing hired
slave in business not permitted by bailment, is liable for a casualty incident
to the nature of the service, but not for injuries from any other source while
so engaged; Johnson.v. Weednian, 5 111. 495 (1843), held that at most nominal
damages could be recovered when the loss of the chattel was not due to its
misuse; and see opinion of Simons, J., in Farkas v. Powell, 86 Ga. 800
(1891). Nor need the injury be caused by the deviation, or occur during
the continuance; Ilorscly v. Branch, 1 Humph. 199 (Tenn. 1839), though in
some cases the bailee's liability for the injury or destruction of the chattel, is
stated as existing only during such misuse, De Voin v. Michigan. Lumber Co.,
64 Wis. 616; and see Lord Holt in Coggs v. Bernard, quoted in principal case;
contra, Farkas v. Poivell, 86 Ga. 800 (1891), where it was held that, while the
defendant was guilty of a technical conversion by driving the horse three
miles beyond his permitted terminus, he was not liable, for injuries occurring
without his fault after he had returned to the prescribed route, Harvey v.
Epes, 12 Grat. 153 (Va. 1855), and Carney v. Rease, 60 W. Va. 676 (1906).

The deviation is none the less a conversion though the contract of bail-
ment be illegal, as where it is made on Sundav, Morton v. Gloster, 46 Maine
520 (1859) ; Hall v. Corcoran, 107 Mass. 251 (1871) ; Fisher v. Kvle, 27 Mich.
454 (1875) ; Jl'oodmany. Hubbard, 25 N. H. 67 (1852), or is unenforcible, as
when the bailee is an infant. Homer v. Thwing, 3 Pick. 492 (Mass. 1826) ;
Towne v. Wiley, 23 Vt. 355 (1851) ; contra. Wilt v. Welsh, 6 Watts 9 (Pa.
1837), ante note 1.

° Contra: Moseley v. Wilkinson, 24 Ala. 411 (1854), p. 416; "As property
may be changed by a recovery in trover, to give the party, who has recovered
in trover, the hire accruing after the conversion, would be the same as to
give him hire which accrued after he had sold the property to the plaintiff;
. . . he cannot treat the contract as a bailment and a sale and if, with full
knowledge of the conversion before the time for hire has terminated, he re-
ceives pay for the entire term, he asserts his right to the hire which has ac-
crued after the conversion and is estopped from maintaining any action in-
consistent with the right thus asserted." In Rotch v. Hawes, 12 Pick. 136
(Mass. 1831), it wat held that a receipt of payment on the basis of the use
actually made of the chattel, with full knowledge of the deviation from the
original bailment is "'a subsequent assent equivalent to a previous agreement."



164 DOOLITTLE & SHERMAN Z'. SHAW.

thereto as fully and with the same legal effect as if the hiring had
been originally for twenty miles : and although he might, if the fact
so appeared, have an action, on the case it may be, for any improper
treatment of the horse on the journey, whereby the horse was in-
jured or killed, he could not, after such assent, proceed for a con-
version.

In the present case, however, the proof in relation to the re-
ceipt of the additional compensation is very loose and imperfect.
It does not distinctly appear that the additional compensation was
received, with knowledge that the horses had been rode beyond
Harlem. And the words of the witness may possibly be deemed to
import that those only who brought back their horses paid the extra
price charged. On this question of fact, I cannot say that the find-
ing of the justice may not have been that those who returned with
their horses paid the extra charge, and that it was received without
any knowledge that any of the horses had been taken to Westchester
county. And though the evidence is by no means satisfactory to
my own mind, I do not feel warranted in reversing the judgment.
Had the defendant shown that the horse was diseased when he was
hired, that should have been taken in mitigation of damages ; but
the proof does not appear to have satisfied the court below of that
fact.

IxGRAHAM, First J., concurred in affirming the judgment.

Judgment affirmed.



DOOLITTLE & SHERMAN v. SHAW.
Appeal from Delaware District Court, 1894. 92 la. 348,

Action for the recovery of the value of a horse. Verdict for
plaintiffs. Defendant appeals. — Reversed.

KiNNE, J. — Plaintiff's cause of action is stated in two counts.
The first charges that on September ist, 1892, defendant had and
received from the plaintiff a pair of horses and buggy, of the value
of two hundred and fifty dollars, to drive from Delhi, Iowa, to
Manchester, Iowa ; that defendant drove said horses so immoder-
ately, and so neglected their care, that one of them became sick, and
defendant, knowing said fact, continued to drive and abuse said
horse until his death ; that plaintiff's were damaged in the sum of one
hundred dollars. In a second count, plaintiffs aver that they paid
two dollars, at defendant's instance, to have the horse buried. In
an amendment it is averred that the team and buggy were loaned to
defendant to go from Delhi to Manchester and return, and that
defendant, after driving to Manchester, converted said team and
buggy to his own use, and failed to return said team as received,
and still fails to return one of said horses, which horse was worth
one hundred dollars, for which they pray judgment. Defendant
denied all of the allegations of the original petition. Afterward,
in an amendment, he pleaded that the contract of letting and hiring



DOOLITTLE & SHERMAN V. SHAW. 165

set out in the petition, and the damage growing out of the same,
and all matters set out in the amendment, occurred on Sunday, and
no right of action can be maintained thereon. There was a trial
to a jury, and a verdict for plaintiffs.

II. On Sunday, September 4th, 1892, defendant hired of plain-
tiffs a team of horses and a buggy to drive from Delhi to Man-
chester and return. After arriving at Manchester he drove six or
seven miles into the country. He then returned to Manchester,
where he let one Luke Connelly drive the team to the fair ground
and back, after which defendant and Connelly started on the return
trip to Delhi, and, when about midway between the two places, one
of the horses was taken sick and died. At the close of plaintiff's
testimony, defendant moved for a verdict, which motion was over-
ruled. The grounds of the motion were, iirst, that the testimony
showed a letting of the team on Sunday, and plaintiffs did not bring
themselves within the exceptions of the statute prohibiting work on
that day ; second, that it was not shown that the death of the horse
was caused by driving to a place other or different from the place