Park, J.
The principal question in this case is, whether the defendant is liable, in this form of action, for the act of the workmen of the Mystic Iron Works in taking and carrying away personal property belonging to the plaintiff, while transacting the business of that company in removing certain articles of personal property, sold to them by the Quinebaug Bank.
The case finds that the property sold was situated in a building belonging to the bank, but which was in the possession of the plaintiff as a tenant at will. The plaintiff was opposed to the removal of the property sold, and refused his assent to the„entrance of the workmen into the building for the purpose of removing the same. Thereupon the defendant, as president of the bank, directed the woi’kmen to enter the building by force. After an entrance had been effected, the defendant put the workmen in possession of the property sold, and authorized and advised them to remove the same. The property sold and the articles belonging to the plaintiff consisted of machinery and tools, such as are commonly found where work upon iron is carried on, and were mingled together as they had been used. This property of the plaintiff was carried away by mistake in removing the property sold.
These are the principal facts on which we are to advise the superior court whether the defendant is liable in trespass for the removal of the property belonging to the plaintiff.-
It appears by the contract of sale that the Mystic Iron [342]*342Works were to take possession of the property sold at the •place where it was found by their servants and workmen. The bank, through their president, caused an entrance to be made into the building, for the purpose of fulfilling this part of their contract, and, when fulfilled, all right, title' and interest in the property passed from the bank .to the Mystic Iron Works. Indeed, possession had been delivered some days before this transaction took place, and, no doubt-, at that time the bank ceased to be the owners of the property, but when the workmen of the Mystic Iron Works were driven by the plaintiff from the building, the bank felt that good faith to the vendees required them to re-deliver the property.
The removal of the property then was solely the act of the Mystic Iron Works. The men who removed tlje same were in their employ, subject to their order and direction, and cannot in any sense be considered as doing any thing for the defendant or his principal. It was of no importance to them what became of the property. Under these circumstances, if the defendant is responsible, his liability must arise from' the fact that, after possession was re-delivered to the workmen, he authorized and advised them to remove the property sold. Does it arise from the fact that he authorized them to remove the property? The Mystic Iron Works had this authority by the contract of sale. All the authority that was necessary on the subject, consisted in giving them power to take and keep possession of the building, so far and so long as was necessary to remove the property. The right to remove the property, as such, arose from the fact of ownership.- At the time this authority was given, it was somewhat in doubt whether the bank had the right to sell the property, inasmuch as the plaintiff claimed to be the owner of it by a prior purchase from the bank, and the authority that was given by the cdefendant, no doubt, had some reference to this, and was intended to save the workmen harmless, not only in taking-possession of the building, -but from all liability that might arise from the claim of the plaintiff in this respect.
The most favorable view for the plaintiff that can be taken of the authority conferred is, that it encouraged the workmen [343]*343to remove the property sold. It may well be questioned, however, whether it was so intended, or had any such effect. We have seen that it was Of no importance to the defendant, or the bank, whether the property was removed or hot. They were desirous to fulfill their contract with the Mystic Iron Works, and that was all.
The Mystic Iron Works intended, from the first, to remove the property, and had sent workmen to accomplish the object, by whom a part of it had been removed before any express authority was given. But, -granting that the authority conferred had the effect claimed by the plaintiff, and taking into consideration also the advice that was given by the defendant to the workmen, let us inquire what responsibility was thus incurred. No one will doubt that the act authorized and advised to be done was lawful, so far as this part of the case is concerned. The question then is, whether a party who encourages the owner of personal property, or his representative, to, remove the same from one place to another, becomes liable for whatever goods belonging to a third party may be taken and carried away by mistake, in performing the act advised to be done. Suppose A is the owner of a horse that is kept at a livery stable. He sells the horse to B, and, by the contract of sale B is to take the horse at the stable. After the sale is perfected A advises B that, for certain reasons, he had better take the horse immediately. B takes, by mistake, the horse of 0, that closely resembles the horse sold. Is A liable for the act ? If the advice would be sufficient to make him liable, then suppose that, instead of the advice, after the contract bf sale was perfected, A should direct B in the shortest way to the barn, and should furnish a halter for the purpose of removing the animal, and thus should render assistance to B. Would this make him liable ? If it would, then it might well be urged that the sale itself would be sufficient for the purpose. A sells the horse expecting B will take it. By the sale he authorizes him to take it, and certainly this would be sufficient, if liability arises in the other cases supposed. We are satisfied that A would not be liable in any of these cases; neither is the defendant in the case [344]*344under consideration, which is similar in all essential particulars to the first case supposed.
But it is said that the property sold was mingled with the property of the plaintiff, and that the difficulty of distinguishing between the two classes of property was so great, that the taking of property of the plaintiff was a natural and necessary consequence resulting from the taking of the property sold.
But the superior court has not so found, and this alone is a sufficient answer. Neither is it found that the defendant knew that the two classes of property were mingled together, much less that there was any difficulty in distinguishing the one class from the other. All that is stated upon the subject is that the workmen exercised all the care and caution that could be used in such a case to prevent the taking of the property of the plaintiff. They exercised proper care, according to what information they had, but the fact that they took so large an amount of property belonging to the plaintiff shows that their knowledge upon the subject was limited. The two classes of property were simply mingled together, and it is difficult to see how the taking of the one class could necessitate the taking of the other. The difficulty arose from the want of information sufficient to identify the property sold.
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Park, J.
The principal question in this case is, whether the defendant is liable, in this form of action, for the act of the workmen of the Mystic Iron Works in taking and carrying away personal property belonging to the plaintiff, while transacting the business of that company in removing certain articles of personal property, sold to them by the Quinebaug Bank.
The case finds that the property sold was situated in a building belonging to the bank, but which was in the possession of the plaintiff as a tenant at will. The plaintiff was opposed to the removal of the property sold, and refused his assent to the„entrance of the workmen into the building for the purpose of removing the same. Thereupon the defendant, as president of the bank, directed the woi’kmen to enter the building by force. After an entrance had been effected, the defendant put the workmen in possession of the property sold, and authorized and advised them to remove the same. The property sold and the articles belonging to the plaintiff consisted of machinery and tools, such as are commonly found where work upon iron is carried on, and were mingled together as they had been used. This property of the plaintiff was carried away by mistake in removing the property sold.
These are the principal facts on which we are to advise the superior court whether the defendant is liable in trespass for the removal of the property belonging to the plaintiff.-
It appears by the contract of sale that the Mystic Iron [342]*342Works were to take possession of the property sold at the •place where it was found by their servants and workmen. The bank, through their president, caused an entrance to be made into the building, for the purpose of fulfilling this part of their contract, and, when fulfilled, all right, title' and interest in the property passed from the bank .to the Mystic Iron Works. Indeed, possession had been delivered some days before this transaction took place, and, no doubt-, at that time the bank ceased to be the owners of the property, but when the workmen of the Mystic Iron Works were driven by the plaintiff from the building, the bank felt that good faith to the vendees required them to re-deliver the property.
The removal of the property then was solely the act of the Mystic Iron Works. The men who removed tlje same were in their employ, subject to their order and direction, and cannot in any sense be considered as doing any thing for the defendant or his principal. It was of no importance to them what became of the property. Under these circumstances, if the defendant is responsible, his liability must arise from' the fact that, after possession was re-delivered to the workmen, he authorized and advised them to remove the property sold. Does it arise from the fact that he authorized them to remove the property? The Mystic Iron Works had this authority by the contract of sale. All the authority that was necessary on the subject, consisted in giving them power to take and keep possession of the building, so far and so long as was necessary to remove the property. The right to remove the property, as such, arose from the fact of ownership.- At the time this authority was given, it was somewhat in doubt whether the bank had the right to sell the property, inasmuch as the plaintiff claimed to be the owner of it by a prior purchase from the bank, and the authority that was given by the cdefendant, no doubt, had some reference to this, and was intended to save the workmen harmless, not only in taking-possession of the building, -but from all liability that might arise from the claim of the plaintiff in this respect.
The most favorable view for the plaintiff that can be taken of the authority conferred is, that it encouraged the workmen [343]*343to remove the property sold. It may well be questioned, however, whether it was so intended, or had any such effect. We have seen that it was Of no importance to the defendant, or the bank, whether the property was removed or hot. They were desirous to fulfill their contract with the Mystic Iron Works, and that was all.
The Mystic Iron Works intended, from the first, to remove the property, and had sent workmen to accomplish the object, by whom a part of it had been removed before any express authority was given. But, -granting that the authority conferred had the effect claimed by the plaintiff, and taking into consideration also the advice that was given by the defendant to the workmen, let us inquire what responsibility was thus incurred. No one will doubt that the act authorized and advised to be done was lawful, so far as this part of the case is concerned. The question then is, whether a party who encourages the owner of personal property, or his representative, to, remove the same from one place to another, becomes liable for whatever goods belonging to a third party may be taken and carried away by mistake, in performing the act advised to be done. Suppose A is the owner of a horse that is kept at a livery stable. He sells the horse to B, and, by the contract of sale B is to take the horse at the stable. After the sale is perfected A advises B that, for certain reasons, he had better take the horse immediately. B takes, by mistake, the horse of 0, that closely resembles the horse sold. Is A liable for the act ? If the advice would be sufficient to make him liable, then suppose that, instead of the advice, after the contract bf sale was perfected, A should direct B in the shortest way to the barn, and should furnish a halter for the purpose of removing the animal, and thus should render assistance to B. Would this make him liable ? If it would, then it might well be urged that the sale itself would be sufficient for the purpose. A sells the horse expecting B will take it. By the sale he authorizes him to take it, and certainly this would be sufficient, if liability arises in the other cases supposed. We are satisfied that A would not be liable in any of these cases; neither is the defendant in the case [344]*344under consideration, which is similar in all essential particulars to the first case supposed.
But it is said that the property sold was mingled with the property of the plaintiff, and that the difficulty of distinguishing between the two classes of property was so great, that the taking of property of the plaintiff was a natural and necessary consequence resulting from the taking of the property sold.
But the superior court has not so found, and this alone is a sufficient answer. Neither is it found that the defendant knew that the two classes of property were mingled together, much less that there was any difficulty in distinguishing the one class from the other. All that is stated upon the subject is that the workmen exercised all the care and caution that could be used in such a case to prevent the taking of the property of the plaintiff. They exercised proper care, according to what information they had, but the fact that they took so large an amount of property belonging to the plaintiff shows that their knowledge upon the subject was limited. The two classes of property were simply mingled together, and it is difficult to see how the taking of the one class could necessitate the taking of the other. The difficulty arose from the want of information sufficient to identify the property sold. The Mystic Iron Works knew what property they purchased, and if they sent workmen to remove it, without giving them sufficient knowledge to distinguish it from the property of the plaintiff, they only are responsible.
The remaining question is in relation to the default. The declaration contains two counts, and each of them sets forth a trespass to the real, and likewise to the personal property of the plaintiff. Holly v. Brown, 14 Conn., 255. The counts are double, and the question has been discussed before us whether the default admits a double or a single cause of action. If it.admits a double cause of action, then the plaintiff contends that damages must be given, not only for the trespass guare clausum f ’regit, but likewise for that de bonis asportatis. He claims that the default precludes the defendant from denying his liability in both respects, to the full extent of the plaintiffs injury, and that all that was left for the court to do was simply to ascertain the amount.
[345]*345The view that wo have taken of the case renders it unnecessary to determine what is admitted by the default, farther than to show that the conclusion to which the plaintiff comes cannot be correct, even if a double cause of action is admitted upon the record.
We are requested to advise the superior court which'of the three sums, named in the finding of facts, judgment should be rendered for the plaintiff to recover.
No question is made but that each of the three sums includes all the plaintiff is entitled to recover for any trespass committed to the real estate. The sums are made to conform to three different views of the case in relation to the personal property. If the defendant is responsible for all the injury committed to the plaintiff, then it is found that the largest sum named should be the measure of damages, but if the defendant is not responsible for the removal and conversion of the personal property, then the court finds that the smallest sum must limit his liability. The smallest sum then includes all the substantial damages that the plaintiff is entitled to recover, provided this court shall be of the opinion that the defendant is not responsible for the removal of the personal property belonging to the plaintiff. Whether he is or not is the sole question that we are required to consider. We have seen that he is not responsible, upon the facts found by the court below, and the question now is whether the default makes him liable, as matter of law, to the full extent of the plaintiff’s injury.
It will be conceded that the default iii this case can admit no more in relation to the personal property, than would be admitted if the declaration contained but one count, de bonis asportatis.
Suppose the declaration contained but one count in this respect, what would be admitted by a default ?
It would doubtless render the defendant technically liable, but would it do anything more ?
The declaration charges the defendant with the removal, not of one^article, particularly describing it, but of a large number of divers and sundry articles, some of merely nominal [346]*346value, consisting of small screws, bolts and old files, and many others of great value. In reference to all these articles questions might be made, under the general issue, as numerous as the articles themselves. Each one of them might be the subject of controversy, and any one of them might be sufficient to decide the case for the plaintiff. Surely the defendant, under such circumstances, if unable to make successful defence in reference to some of the articles, might suffer a default and contest his liability in regard to the others in the assessment of damages. A default in such a case would admit no more than what would be sufficient to decide the case in favor of the plaintiff, upon the plea of the general issue. It is simply an admission, on the part of the defendant, that he is unable to make a complete defence.
We are satisfied that no case can be found which goes farther than this, that in a case like the present' a default admits a liability for the removal of some one of the articles described in the declaration, and without further proof nominal damages only can be given. Havens v. Hartford & New Haven R. R. Co., 28 Conn., 69; Bolles v. Loomis, 5 Wend., 134; Green v. Hearne, 3 T. R., 301.
It would seem to follow, as a necessary consequence, that if nominal damages only can be given without further proof, the defendant may contest his liability, so far as the plaintiff seeks by proof to enhance the damages beyond a nominal sum. Havens v. Hartford & New Haven R. R. Co., supra.
If then the default admits a double cause of action, the sum of thirty-six dollars is all the substantial damage that the plaintiff is entitled to recover; and so we advise the superior court.
In this opinion the other judges concured.