Warder-Bushnell & Glessner Co. v. Harris

46 N.W. 859, 81 Iowa 153

• Court: Supreme Court of Iowa
• Decided: October 16, 1890
• Status: Published

Opinion

Beck, J.

I. The abstract shows that defendant Hams answered the petition, and the trial was as to him alone. His answer admits the taking of the property, and alleges that he was acting in the matter as the agent, and under the direction of his codefendant Close, who was the owner thereof under a mortgage. All other ■allegations of the petition are denied. It is admitted ¡by the parties that plaintiff held the property under a ■mortgage which was prior and paramount to the mortgage under which the defendants claim it. It is admitted that Harris had constructive, though not actual, notice ■of plaintiff’s mortgage.

II. We are authorized to conclude that the district court found for defendant on the ground that he took the property while acting as agent of Close. The admitted facts are that defendant took the property ; and the conclusion of law is that, as between plaintiff and defendant, the plaintiff had the right to the possession of the property under the mortgage, the ownership thereof 'being vested in plaintiff, the mortgagee. Code, sec. 1927; Gordon v. Hardin, 83 Iowa, 550; Doane v. Garretson, 24 Iowa, 351. The defendant Harris took and converted this property. He is liable for damages. The fact that he was agent of his codefendant does not discharge him from this liability. The act was not done under a contract. It was done in violation of plaintiff’s rights, and without the sanction of law. It was, therefore, a tort, for which he is presumably liable. Story on Agency, sec. 308. The capacity in which a tort-feasor acts, whether as agent, trustee, servant or public -officer, does no,t protect him from liability for his torts. The court below erred in rendering judgment for defendant. Reversed.