Stevens v. Eames

22 N.H. 568

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

Eastman, J.

It is well settled, that trover will lie against the receiptor of property attached, whether the action be brought by the sheriff to whom the receipt is given, or in his name, for the benefit of those whose rights depend upon it. Webb v. Steele, et al., 13 N. H. Rep. 230; Cargill v. Webb, 10 N. H. Rep. 199 ; Baker v. Knapp, et al., 6 Johns. Rep. 195 ; Hotchkiss v. McVicar, 12 Johns. Rep. 407 ; 2 Saunders, 47 (a.)

A question is raised as to the legality of the mortgage from Eames to the Bank; it being contended that Cossit, the cashier, had no authority to execute the mortgage on behalf of the bank. But we need not take time to examine this point, inasmuch as we are of opinion that whether Cossit had authority to execute the mortgage or not, there is abundant evidence showing a conversion by Eames. The property was in his hands, and to secure his own debt to the bank he made a mortgage of this and other property, and swore to it. To his deed of the property he added the sanctity of his oath, and he cannot now be permitted to say that he has not converted it. This appears to be quite clear upon the authorities. An abuse of possession, originally legal, or a breach of trust under which property is placed in a defendant’s hands, by disposing of it is a conversion. Murray et al. v. Burling, 10 Johns. Rep. 172; Reid v. Colcock, 1 Nott & McCord’s Rep. 592 ; Hutchinson v. Bobo, 1 Bailey’s Rep. 546; Bristol v. Burt, 7 Johns. Rep. 254; Ripley v. Dolbier, 6 Shepl. Rep. 382; Baldwin v. Cole, 6 Mod. Rep. 212 ; McCombie v. Davies, 6 East. Rep. 540 ; Bloxam, et al. v. Hubbard, 5 East. 407; Lovell v. Martin, et al. 4 Taunton, 799. And when a person intrusted with the goods of another, puts them into the hands of a third person, contrary to orders, it is a conversion. Syeds v. Hay, 4 Term. Rep. 264. So, also, is the driving a hired horse a greater distance than is agreed, or in a different direction. Wheelock v. Wheelwright, 5 Mass. Rep. 104 ; Homer v. Thwing, 3 Pick. Rep. 492; Hart v. Skinner, 16 Vermont Rep. 138. And in Kennedy v. Strong, 14 Johns. Rep. 128, it was held, that if a factor pledge the goods of his principal for his own debt, it is a conversion. The pledging of the goods, says Chief Jus-, tice Thompson, is the wrongful act which constitutes the conversion.

Whenever the taking is tortious, or an actual conversion is shown, a demand and refusal are unnecessary. Farrington v. Payne, 15 Johns. Rep. 431; Woodbury v. Long, 8 Pick. Rep. 543 ; Tompkins v. Haile, 3 Wendell’s Rep. 406 ; Jewett v. Partridge, 3 Fairfield’s Rep. 243; Dursell v. Masher, 8 Johns. Rep. 445. A conversion by Eames being shown, no demand upon him was necessary to be proved.

A few days before the suit was instituted a demand was made upon Tuttle. It was then not in his power to make a literal compliance by returning the property, unless he could procure it from the purchasers at the auction sale. He, however, could have answered the demand by paying the money. This was not done, and no compliance with the demand was made. Here was evidence competent to charge him in an action of trover ; for although a demand and refusal are not in themselves a conversion, yet they are evidence upon which to found a conversion. Cargill v. Webb, 10 N. H. Rep. 199. Non-compliance is a virtual refusal; and where there is a demand and refusal or noncompliance unexplained, it is sufficient to show a conversion.

But it is said that it is necessary to show a joint conversion by the defendants; and there are authorities that sustain that view of the question. Forbes v. Marsh & Sedgwick, 15 Conn. Rep. 384; 1 Chitty’s Pl. 86. The action of trover;, however, is in form ex delicto, and one defendant may be acquitted and a verdict taken against others. Govet v. Radnidge, et al. 3 East’s Rep. 62; Moon v. Eldred, 3 Hill’s (N. Y.) Rep. 104 ; Barron et al. v. Davies, et al. 4 N. H. Rep. 338. In the last case cited, it was held, that, although the conversion was alleged to have been made by the defendants and another person, on whom the writ was not served, yet that the action might be sustained by pi’oof of a conversion by the defendants alone. But where the action is brought against joint baileeá, a conversion by all should be shown. Mitchell v. Williams, 4 Hill’s (N. Y.) Rep. 13. The tenor of the authorities would seem to be, that where the action is against the defendants jointly, evidence of a demand and refusal upon them at different times is sufficient to charge them all; but there must be evidence of some kind against all.

But, whatever may be the precise doctrine upon this point, there was evidence in this case competent to show a joint conversion. The fact that Tuttle, who was the reliable man upon the receipt, permitted the property to remain in the possession and under the direction of Eames, without attempting to exercise any control over it himself; the conveyance of the property by Eames to the bank, and the subsequent sale of it at auction — facts which must have been known to Tuttle, but which he did not' interfere to prevent — and the demand and non-compliance on the part. of Tuttle, were competent and sufficient to show an assent by Tuttle to the conversion by Eames.

The verdict, then, in favor of the plaintiff is correct, unless he can be regarded as assenting to the sale by the bank, and so far relinquishing his claim to the property as to lose his lien by virtue of the attachment. The maxim, that silence gives consent, is one of very general application in the ordinary transactions of life, and which is frequently recognized in the discussion of legal principles. The assent, however, to have the effect of an acquiescence, must exhibit some act of the mind amounting to the voluntary relinquishment of a right. To be bound by the presumed assent, the party must be so situated as not only to be able to assert his rights, but not to assert them would be a want of good faith on his part. Allen v. McKeen, 1 Sumner’s Rep. 217, 314; Melen v. Andrews, 1 M. & M. 336. Had Stevens been present at the time when Barnes mortgaged the property to the bank, and failed to make known the attachment, he might have prejudiced his rights so far as not only to lose all lien upon the property, but also all claim on the receipt. But when he was called upon to act as auctioneer, Eames had parted with his right to the property by the mortgage to the bank, and the mortgage had been foreclosed; so that the receiptors had then no control over the property. He moreover disclosed the situation of the attachment and did not acquiesce in what had been done by Eames and the bank. Finding that the property would be sold, notwithstanding the attachment, he consented to act as auctioneer. His course made no difference with the determination of Cossit in selling the property, and it would have been sold had he not acted as auctioneer. Under the circumstances, we can regard Stevens simply as the agent or servant of Cossit. If there were anything disclosed in the case, that tended to raise a suspicion of collusion between Stevens and Cossit, or any unfairness on the part of Stevens, or any acquiescence by him in what had been done, it might be different. But we discover nothing that can charge him with dishonesty, or with any intent to waive his rights. There must, therefore, be

Judgment on the verdict.