Ball v. Liney

44 Barb. 505, 1865 N.Y. App. Div. LEXIS 95

• Court: New York Supreme Court
• Decided: September 19, 1865
• Status: Published

Opinion

Hogeboom, J.

Notwithstanding the terms of the bailment, and independent of the questions arising under the executions and levies, I think the defendant was bound to surrender the property to the 'plaintiff upon his demand. It was the plaintiff’s property and not Gregory’s. That is undisputed, upon the evidence in the case. The latter seems not to have had any lien or claim on it—or to have asserted title to' it in any way whatever. He was confessedly the agent of the plaintiff, and when he originally deposited the property with the defendant, seems to have done so without any limitation or qualification whatever. Such a deposit, thus made, would enure to the benefit of the principal, and was, in judgment of law, on his account.

On the day succeeding the deposit Gregory returned to the place of deposit and marked the goods and packages “ G. G. G. agent.” This was confirmatory evidence of the title of the plaintiff. On the same day, and probably at the same time, hut without the plaintiff’s knowledge or authority, he left with the defendant a written memorandum of the articles and written instructions to this effect: “The said goods not' to be given up without the consent of said Geo. G. Greogory.” There is room for argument whether as he had confessedly made the deposit as agent, and so marked the goods, these directions must not also be construed to have been made in that capacity and for the benefit of his principal, and as really to mean “without the consent of the owner.” But assuming that they were designed simply to protect the party giving these directions, in his individual capacity, I am nevertheless of the ojfinion that as between the principal and the agent, the latter showing no lien or other authority to deliver them against his principal, the depositary would have a right and would be bound to deliver them to the principal upon demand. They belonged to him, without doubt or qualification ; the agent could not detain them against his principal under such circumstances; and it seems unjust that he should be able to vest his depositary with a larger power of detention than he himself possessed. It may be doubted whether, as against the real owner, the agent, in possession of the goods and apparently their owner, could make an effectual contract with the depositary, which could prevent the latter from delivering them on demand to such real owner. But assuming the contract between the agent and the depositary to be in form valid for their non-delivery without the agent’s consent, and the delivery to the owner by the depositary without such consent to be a technical breach thereof, I think the damages which the agent could recover against the depositary, for such delivery, would be merely nominal.

When subsequently, as the referee finds, the plaintiff gave to the defendant formal and written notice that the property belonged to him, and to hold the same subject only to his written order, and the defendant receiving such notice informed the plaintiff he would act upon it; and, as the referee also finds, the plaintiff not only apprised the defendant that the goods were his, but that he had sent them to the defendant’s warehouse for storage, and that he, the defendant, must not allow them to be removed without his, the plaintiff’s, order, to which the defendant assented, I think we can put no other reasonable construction upon such language and conduct than that the defendant agreed to hold them as the plaintiff’s property and subject to his order; and if he has embarrassed himself by distinct contracts between himself and the agent on the one hand, and himself and the principal on the other, which are conflicting and inconsistent, it his own misfortune, and he must submit to be the victim of his own indiscretion.

The plaintiff had therefore a right on the 15th of May, on the 30th of July, and on the 5th of August, 1862, to demand this property of the defendant as he did, and the defendant was bound to comply therewith and deliver it up. .He refused for insufficient reasons to do so, and thereby, doubtless, exposed • himself to the consequences of a legal prosecution. It was in effect, at the election of the plaintiff, a conversion of the property, but did not of itself and by its own force divest the title of the plaintiff therein. Clearly the plaintiff could, after such demand and refusal, have brought an action of replevin to recover the property itself, and thus in the most decisive manner have manifested his intention to insist on the ownership thereof. He could also, as perhaps he has done in effect, have brought an action of trover for the conversion of the property, and thus declared his election to rely upon the recovery of damages instead of the recovery of the property itself. Or he could, as he did for a time, have lain still and brought no action whatever ; and in such case I apprehend the right of property—the ownership — would be deemed to remain in him. It was, I think, at his election to treat the property as his own or the tort feasor’s, and the legal presumption would not be that he had parted with the title, until he had manifested a clear and decisive intention to do so; until some decisive act of disaffirmance of the title I think the property would be subject to execution against him. Whether an action for damages for the conversion of the property would amount to such a disaffirmance, it is not necessary now to determine; for no such action was brought until after the levies had been made on the property by the sheriff of Rensselaer. On the contrary not only did the plaintiff claim the goods as his own, at the time of the first demand, but also at the time of the subsequent demands, and up to the time when the sheriff sold the goods under execution, which was after the commencement of this action.

On the 6th of August the sheriff levied on these goods under executions against Gregory, and virtually took them into his possession. Was the defendant bound to resist such levy and seizure, or had he a right forcibly to do so, as against an execution against a party (Gregory) who had been in actual possession and who had deposited them with the defendant? Was there any negligence or want of care in his not doing so, or other breach of the obligation imposed on him by the law of bailment ? I think not. If not, then from and after the 6th of August he was virtually dispossessed of the property without his fault, and unable to restore the same to the plaintiff. On the 7th of August the execution against the jdaintiff in this action came into the sheriff’s hands, and although there was no foryiallevy under that execution, the former levies of the previous clay enured to the benefit of this execution, and gave the plaintiff therein the benefit of it. Especially is this so when, on the 23d of August the sheriff advertised the property for sale under this execution as well as the other—thus conclusively establishing the fact of a levy, and presumptively, I think, in the absence of evidence to the contrary, a levy on the 7th of August, on the execution against Ball. All this made it impossible for the defendant to retain the property after the last mentioned date. It is true the sheriff is supposed not to have actually sold the property on the execution against Ball, but he actually sold it under, some execution, and it was put beyond the power of the defendant to regain possession. Nor does it seem to operate with any hardship upon the plaintiff: for if he was—as he seems to have been—the real owner of the property and entitled to the possession thereof, he has an abundant right of action against the sheriff or his indemnitors for their illegal conversion of his property. On the other hand, if this action is maintainable, the plaintiff seems likely to recover damages to the extent of the value of the property, both against this defendant and the parties to the execution sale.

But it is said this is an inevitable consequence flowing from the illegal act of the defendant in refusing to deliver the property to the plaintiff on demand, and was tantamount to a conversion of the property; and that the right of action thus vested in the plaintiff has never been discharged or surrendered by him, and could not be, without his consent.

But I regard this as an erroneous view both of the" law and the fact. The plaintiff had doubtless a right of action for the tortious refusal of the defendant to deliver. And if he had availed himself of it, and done no act inconsistent with the enforcement of that right, and if also the law had not stepped in and prevented its enforcement, the right would have continued unimpaired up to the commencement and the trial of this action. It may be doubted, however, whether the supposed conversion arising from a tortious refusal to comply with a lawful demand of property is not waived by a subsequent demand of the property as belonging to the party making the demand, and by repeated assertions of title to the property long after the conversion has taken place. The act of conversion implies an appropriation of the property to his own use by the party guilty of the conversion; and assuredly a party can not both retain title to the property converted and have damages to the amount of its value for its appropriation by another party. True the title to the property is not absolutely and completely changed until judgment and execution satisfied against the offending party ; but this is because the action may abate or be discontinued, or circumstances may occur to prevent complete satisfaction.

If the plaintiff had brought an action of replevin, instead of an action of trover, and notwithstanding the defendant's original and repeated refusals to deliver the same upon demand, he tendered or offered to return the property before suit brought, I think the action of replevin could not have been maintained, because the defendant had done before suit precisely what it was the object of the suit to compel him to do; and because, notwithstanding the apparent conversion of the property by the defendant, the plaintiff had not as yet elected to disaffirm his title, and presumptively it remained in him. True the defendant was liable to damages if any there were, for the wrongful detention; but those were merely incidental to the action of replevin, and could not alone have sustained the action of replevin itself. There would have been no obligation to their recovery in a distinct" action properly framed for that purpose. (Savage v. Perkins, 11 Howard, 17.) I think the levy upon the property by an execution in favor of a third person against the plaintiff in the action, and the consequent dispossession of the defendant, was equivalent to a return of the property to the plaintiff. It discharged the obligation of the defendant to make return, because by the act pf the law be was disenabled to do so. There is no breach of obligation tinder the law of bailment, of which he was guilty. If he had made actual return to the plaintiff, the property in the latter’s possession would have been subject to this execution, and it can not differ the case in substance that the execution was levied just before its return to the plaintiff instead of just after such return might have been made.

Is the case altered in substance when the action is trover, instead of replevin ? Admit that the refusal to deliver constituted a conversion, which is not always and necessarily the case, being merely evidence from which a jury may infer a conversion, (see 11 How. 17; Hill v. Covell, 1 Comst. 522 ; Hayward v. Seaward, 1 Moore & Scott, 459,) and it is to be remarked in this case that the referee has not found, in terms, any actual conversion. Nevertheless, as has been already stated, the actual title to the goods remained in the plaintiff, and they were subject to execution against him, until the title was completely changed by satisfaction of the judgment to be obtained for the damages recoverable in the action of trover. Before such satisfaction, and before the commencement of this suit, the sheriff steps in with an execution in favor of a third person, not the defendant, and dispossesses the defendant and takes possession of the goods and puts them in the custody of the law. No act of the defendant contributed to this result, and no act of his could prevent it. The return of the property has become impossible by the act of the law. The fact, in my judgment, should clearly operate in mitigation of damages if not wholly in bar of the action, and such, I think, is the effect of the authorities.

It is said the case of Hanmer v. Wilsey, (17 Wend. 91,) is conclusive against this view of the case. But there are two marked points of difference between that case and the present. 1. The levy of the attachment, which the defendant offered to interpose by way of defense, was, after the commencement of the action. 2. It was an attachment in favor of the defendant himself.

In Otis v. Jones, (21 Wend. 394,) a distinction was taken between an execution in favor of the wrongdoer- himself and one in favor of a third person, and the effect of the latter left undecided.

But in Higgins v. Whitney, (24 Wend. 379,) the question came up in the latter aspect, and the process under which the defendant defended was in favor (as in this case) of a third person, and it was distinctly held that “one who has wrongfully taken property can not mitigate damages by showing that he has himself applied the property to the owner’s use without his consent. But when the property has been so applied by the act of a third person, and by operation of law, that fact should be taken into account in estimating the plaintiff’s damages.” This decision was followed and approved in Sherry v. Schuyler, (2 Hill, 204,) in a case precisely similar in principle, and has been sustained in prior and subsequent cases. [See Edson v. Weston, 7 Cowen, 278; Bliven v. Hudson River R. R. Co., 35 Barb. 188; Whitaker v. Merrill, 28 id. 526; Savage v. Perkins, 11 How. Pr. R. 17.)

It is suggested that as the referee has found that the defendant withheld the goods from the plaintiff when demanded, “ with the intent to and for the purpose of thereby benefiting the said George G. Gregory, and in collusion with him,” this feature is sufficient, within some of the cases before referred to, to overrule the defense. But I think otherwise. The principle of this qualification to the admissibility of the-proposed defense is some act of bad faith on the part of the defendant in bringing the property within the operation of the process under which it was seized. The finding of the referee is too vague and inexplicit, on that subject, to admit of such an application. The mode in which the defendant proposed to benefit Gregory is not stated and can not be inferred. It would be a violent and strained inference to conclude that it was to be by having an execution issued against the plaintiff; and that this intent was formed as early as the 15th. of May, when the first refusal took place, the execution not being issued till August. If there be any thing in this branch of the case, it can be presented on the new trial.

[Albany General Term, September 19, 1865.

As the referee gave judgment for the plaintiff for the entire value of the property with interest, and refused to give any effect to the levies, either in bar of the action or in mitigation of damages, I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

Miller, J. concurred.

Ingalls, J. expressed no opinion.

Hew trial granted.

Hogeboom, Miller and Ingalls, Justices.]