Bullard v. Young

3 Stew. 46

Opinion

BY JUDGE WHITE.

Young was a bailee or carrier, who undertook to deposite the flour at a particular place for the plaintiff. This he did not do, but wilfully and of his own accord left it at another place whence it was innocently taken by a third person, who paid him, the defendant, -for it. In first Chitty on pleading, page 159, it ’s sa‘d “that when a carrier by mistake delivers goods-to a wrong person, trover will lie, though it would be otherwise if they had been lost by accident.” See also 3d Slarkie 1493 to the same point In the present case, even the apology of a mistake is net pretended. Then the conversion was more clearly made out than the authorities require. Had it been a mere act of nonfeasance, or negligence, the redress should have been sought by an action on the casQj or assumpsit.

Footnotes

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a But it was a positive act, inconsistent with the undertaking of the defendant, and which tended directly to the injury of the plaintiff. This, by the authorities cited, and others which might be referred to, was undoubtedly a conversion, and the charge of the Court below was therefore erroneous. The judgment must be reversed and the cause remanded.

Reversed and remanded.

1 Clutty 159.