Moffat v. Wood

1 Seld. Notes 186

• Court: New York Court of Appeals
• Decided: December 31, 1853
• Status: Published

Opinion

Where goods are sent to commission merchants for sale on commission, upon specified terms, and they subsequently place them in the hands of another merchant for sale on the same terms, such act is a conversion of the goods to their own use, and renders them liable in trover.

The position of the commission merchant is' one of personal trust and confidence, which cannot be delegated by him to another without the consent of the consignor.

Whether, where goods are held by a copartnership for sale on commission, at the time of its dissolution, the conversion of them to his own use by the partner who retains them, charged with the duty of closing the joint business, renders the other partner liable for the conversion — Quere t

But if it renders both liable, the owner cannot in such case waive the tort, and recover the value of the goods in an action against both for goods sold. Their joint liability in tort could only be established by force of the joint contract of bailment; which, being an express contract to account for the goods as bailees, could not be disregarded and a contract of sale implied. An express contract leaves no room for an implied one.