Seymour, J.
The' property which is the subject of this suit was obtained from the plaintiffs by the fraudulent representations of Luther, who falsely claimed to be the servant of the defendants and to be authorized to purchase the goods on the defendants’ credit. Luther in fact had no such authority. The defendants had contracted with him that he should furnish and place in their mill the running machinery therefor at and for the agreed price of $3,000. This contract price had been paid as agreed in several payments as the work progressed, and Luther had practiced a fraud upon the defendants by putting into their mill as his own the articles which he had fraudulently obtained from the plaintiffs. • Both the plaintiffs and defendants acted in good faith, and one or the other of them must suffer from Luther’s fraud.
It has been suggested in the discussion of the question which of the two shall suffer, that some negligence is imputable to the plaintiffs in giving credit to the naked word of Luther that he ivas authorized to purchase the goods on the defendants’ credit, and that the plaintiffs according to the usual course of business should have required written author[238]*238ity, or have been assured by the defendants themselves of Luther’s power to act for them, and that the plaintiffs having thus given an unusual credence to Luther’s word ought to be made to suffer for his fraud, rather than the defendants who paid Luther as contractor the contract price for his labor and materials according to the natural and usual course of business.
The case however was mainly discussed at the bar upon the basis that both parties were equally innocent and equally free from blame, and that the loss must fall where the principles and analogies of the law cast it, without reference to differences between the parties founded on the negligence or want of proper caution of either of them; and we prefer to place our decision upon the general principles of law applicable to the case, rather than upon merely equitable considerations.
The action is trover, and the plaintiffs must of course prove that the property was theirs and was converted by the defendants to their own use.
Is such conversion by the defendants proved ? Luther was undoubtedly guilty of a conversion, but Luther was not the servant or agent of the defendants. A contractor employed as he was is in no sense the servant of the employer, so as to render the employer liable for the contractor’s acts. Sherman & Redfield on Negligence, §79, and cases there cited. No claim was made by the plaintiffs’ counsel that the defendants could be charged in this action with the acts of Luther.
The finding of the Superior Court is that the articles which are the subject of the suit “ were by Luther in pursuance of his contract placed in working order in the mill of the defendants, where (with the exception of a few articles worn out by use,) they have ever since remained and been used by the defendants as their own property, as part of said mill and inseparable from it.”
It is this use of the property by the defendants which is relied on as a conversion.
It will be noticed that the finding is definite, that the articles became an inseparable part of the mill.
A list of the articles is found in the declaration. As to [239]*239most of them it is easy to see that they might naturally have become thus incorporated with the defendants’ property. In regard to some of them it would seem from their nature that perhaps they might be identified as those furnished by the plaintiff, and be separated from the building. But we take the finding to be, as we have no doubt it is, correct, and by that finding it appeal’s that by the act of Luther under his contract the articles for the alleged conversion of which the suit is brought were incorporated into the defendants’ mill as part of it and inseparable from it. The property by thus becoming part of the mill became part of the real estate. Its character was thus changed from personal to real; and the change was by no act of the defendants nor by the act of any one for whose conduct they are responsible. It was not until after this change that the defendants did the acts for which this action is brought.
Conceding then that the plaintiffs’ title continued down to the time that the personal became real estate, the questions arise: — 1. Does their title continue, so that they can follow the property in its changed form ? 2. Is the use of these articles by the defendants as part of their mill, in the use of the mill itself, a conversion for which the action will lie ?
The spirit of the common law forbids as a general rule that the owner of property should lose his title without his consent, and some of the rules of the civil law whereby title is changed by a mere change in the form and character of the property may not be admitted as part of our law; but the common law .admits such loss of title in many familiar cases. If by natural causes the soil of my land is carried upon my neighbor’s and becomes inseparably mingled with it, my soil is lost to me, and if no fault or neglect of his caused the avulsion I have no action at law against him, however much his land may be benefited. And even if, by my own wrongful act, the personal property of another becomes inseparably incorporated with my real estate, the property may be changed so that the owner cannot follow it, but is left to his remedy by action at law; as if I use another’s oil or lead in painting my house, or his nails, screws, brick or lime in building.
[240]*240In the case Tinder consideration the plaintiffs’ property became incorporated with and part of the defendants’ real estate by the act of a third person, Luther. Are the plaintiffs then any longer owners of the articles in dispute ? We think not.
A case very similar to this was decided by the highest court in the state of New York, reported in 5 Hill, 116, and in 7 Hill, 529, Fryatt v. The Sullivan Company. The reporter’s head note is as follows: “ Where one having hired the use of certain personal property, wrongfully converted it by annexing it to and making it a part of his real estate, and then sold the real estate to a third person who had no notice of the facts, held that the party injured could not reclaim his property from the purchaser, but his only remedy was by action against the wrong doer.” And Bronson, J., giving the opinion of the court, says, “ A man cannot maintain an action against me, by proving that the person from whom I purchased my house wrongfully took or converted the brick, stone, timber, lime, or other materials of which my house was constructed, nor can he enter and tear down my house for the purpose of regaining that portion of it which once belonged to him.”
A similar case came before the Supreme Court in Massachusetts, reported in 22 Pickering, 559, Peirce v. Goddard, and was decided in the same way. Wilde, J., in giving the opinion of the court says: “ It is laid down by Malloy (De Jure Marítimo, lib. 2, chap. 1, § 7,) as a settled principle of law, that if a man cuts down the trees of another, or takes timber or plank prepared for the erecting or repairing a dwelling house, nay though some of them are for shipping, and builds a ship, the property follows not the owners but the builders ; and Chancellor Kent says in his Commentaries, (2 Kent Corn., 360, 61,) if A
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Seymour, J.
The' property which is the subject of this suit was obtained from the plaintiffs by the fraudulent representations of Luther, who falsely claimed to be the servant of the defendants and to be authorized to purchase the goods on the defendants’ credit. Luther in fact had no such authority. The defendants had contracted with him that he should furnish and place in their mill the running machinery therefor at and for the agreed price of $3,000. This contract price had been paid as agreed in several payments as the work progressed, and Luther had practiced a fraud upon the defendants by putting into their mill as his own the articles which he had fraudulently obtained from the plaintiffs. • Both the plaintiffs and defendants acted in good faith, and one or the other of them must suffer from Luther’s fraud.
It has been suggested in the discussion of the question which of the two shall suffer, that some negligence is imputable to the plaintiffs in giving credit to the naked word of Luther that he ivas authorized to purchase the goods on the defendants’ credit, and that the plaintiffs according to the usual course of business should have required written author[238]*238ity, or have been assured by the defendants themselves of Luther’s power to act for them, and that the plaintiffs having thus given an unusual credence to Luther’s word ought to be made to suffer for his fraud, rather than the defendants who paid Luther as contractor the contract price for his labor and materials according to the natural and usual course of business.
The case however was mainly discussed at the bar upon the basis that both parties were equally innocent and equally free from blame, and that the loss must fall where the principles and analogies of the law cast it, without reference to differences between the parties founded on the negligence or want of proper caution of either of them; and we prefer to place our decision upon the general principles of law applicable to the case, rather than upon merely equitable considerations.
The action is trover, and the plaintiffs must of course prove that the property was theirs and was converted by the defendants to their own use.
Is such conversion by the defendants proved ? Luther was undoubtedly guilty of a conversion, but Luther was not the servant or agent of the defendants. A contractor employed as he was is in no sense the servant of the employer, so as to render the employer liable for the contractor’s acts. Sherman & Redfield on Negligence, §79, and cases there cited. No claim was made by the plaintiffs’ counsel that the defendants could be charged in this action with the acts of Luther.
The finding of the Superior Court is that the articles which are the subject of the suit “ were by Luther in pursuance of his contract placed in working order in the mill of the defendants, where (with the exception of a few articles worn out by use,) they have ever since remained and been used by the defendants as their own property, as part of said mill and inseparable from it.”
It is this use of the property by the defendants which is relied on as a conversion.
It will be noticed that the finding is definite, that the articles became an inseparable part of the mill.
A list of the articles is found in the declaration. As to [239]*239most of them it is easy to see that they might naturally have become thus incorporated with the defendants’ property. In regard to some of them it would seem from their nature that perhaps they might be identified as those furnished by the plaintiff, and be separated from the building. But we take the finding to be, as we have no doubt it is, correct, and by that finding it appeal’s that by the act of Luther under his contract the articles for the alleged conversion of which the suit is brought were incorporated into the defendants’ mill as part of it and inseparable from it. The property by thus becoming part of the mill became part of the real estate. Its character was thus changed from personal to real; and the change was by no act of the defendants nor by the act of any one for whose conduct they are responsible. It was not until after this change that the defendants did the acts for which this action is brought.
Conceding then that the plaintiffs’ title continued down to the time that the personal became real estate, the questions arise: — 1. Does their title continue, so that they can follow the property in its changed form ? 2. Is the use of these articles by the defendants as part of their mill, in the use of the mill itself, a conversion for which the action will lie ?
The spirit of the common law forbids as a general rule that the owner of property should lose his title without his consent, and some of the rules of the civil law whereby title is changed by a mere change in the form and character of the property may not be admitted as part of our law; but the common law .admits such loss of title in many familiar cases. If by natural causes the soil of my land is carried upon my neighbor’s and becomes inseparably mingled with it, my soil is lost to me, and if no fault or neglect of his caused the avulsion I have no action at law against him, however much his land may be benefited. And even if, by my own wrongful act, the personal property of another becomes inseparably incorporated with my real estate, the property may be changed so that the owner cannot follow it, but is left to his remedy by action at law; as if I use another’s oil or lead in painting my house, or his nails, screws, brick or lime in building.
[240]*240In the case Tinder consideration the plaintiffs’ property became incorporated with and part of the defendants’ real estate by the act of a third person, Luther. Are the plaintiffs then any longer owners of the articles in dispute ? We think not.
A case very similar to this was decided by the highest court in the state of New York, reported in 5 Hill, 116, and in 7 Hill, 529, Fryatt v. The Sullivan Company. The reporter’s head note is as follows: “ Where one having hired the use of certain personal property, wrongfully converted it by annexing it to and making it a part of his real estate, and then sold the real estate to a third person who had no notice of the facts, held that the party injured could not reclaim his property from the purchaser, but his only remedy was by action against the wrong doer.” And Bronson, J., giving the opinion of the court, says, “ A man cannot maintain an action against me, by proving that the person from whom I purchased my house wrongfully took or converted the brick, stone, timber, lime, or other materials of which my house was constructed, nor can he enter and tear down my house for the purpose of regaining that portion of it which once belonged to him.”
A similar case came before the Supreme Court in Massachusetts, reported in 22 Pickering, 559, Peirce v. Goddard, and was decided in the same way. Wilde, J., in giving the opinion of the court says: “ It is laid down by Malloy (De Jure Marítimo, lib. 2, chap. 1, § 7,) as a settled principle of law, that if a man cuts down the trees of another, or takes timber or plank prepared for the erecting or repairing a dwelling house, nay though some of them are for shipping, and builds a ship, the property follows not the owners but the builders ; and Chancellor Kent says in his Commentaries, (2 Kent Corn., 360, 61,) if A builds a house on his own land with the materials of another, the property in the land vests the property in the building by right of accession, and the owner of the land would only be obliged to answer to the owner of the materials for the value of them. This principle is fully sustained by the authorities. In Broke (tit. Property, pl. 23,) [241]*241it is said tliat if timber be talcen and made into a house it cannot be reclaimed by the owner, for the nature of it is changed and it has become a part of the freehold. In Moore,. 20, it was held that if a man takes trees of another and makes them into hoards, still the owner may retake them,, but that if a house be made with the timber it is otherwise.”' “ In the present case,” Judge Wilde continues, “ it cannot be-questioned that the newly erected dwelling house was a part. of the freehold and was the property of Davenport,” (who - had erected the house on his own land from materials belonging to the plaintiff and then sold the house and land to the-defendant.) “ The materials used in its construction ceased to be personal property, and the owner’s property in them was divested as effectually as though theyjhad been destroyed.”
If these cases in New York and Massachusetts were correctly decided, and we think they were, they must govern thecáse before us. The act of Luther in incorporating these-materials into the defendants’ mill, in the language of Judge-Wilde, as effectually divested the plaintiffs’ property in themas though they had been destroyed. The plaintiffs can no-longer follow them. They are no longer theirs. The same-principle is also recognized in the case of Cross v. Marston, 17 Vermont R., 533, though the case was decided upon other-grounds. Judge Bennett there says, “ It is a principle of law that the owner may pursue his property wherever he can-trace it, but when the property has lost its identity it ceases-to have its legal existence; as if one man should convert a-quantity of bricks and erect them into a house and then deed the house to a third person, these bricks will have lost their identity; they are so changed in their character that they cease to be chattels, and the owner cannot pursue them against such third person.”
If the articles had not been made part of the mill and could have been separated and had remained in such a condition that they could be identified, an interesting question would have arisen which was thoroughly and ably argued at the bar, whether the defendants, having in good faith and relying upon the appai'ent ownership of Luther paid him the [242]*242contract price for Ms labor and materials, should be compelled to restore the articles or pay for their value. If the articles had been in the condition supposed, we think a demand should have been made and an opportunity of restoration given before a suit could be brought. We are aware that in Massachusetts and Vermont it would seem that in. similar cases an action will lie without demand, but our own court in Parker v. Middlebrook, 24 Conn. R., 207, have settled the law of Connecticut, that a demand is necessary; and in the state of New York the law is the same as with us. But if demand had been made and refused, would the action lie ? The cases of Kingsford v. Merry, 1 Hurlst. & Nor., 503, and Higgons v. Burton, 21 Jurist, Supplement, 188, seem to settle the English law in favor of the plaintiffs’ continued title to the property under the circumstances supposed. The equities are regarded as equally balanced and the general principle that the owner shall not lose his title without his consent fairly and honestly obtained seems to control the cases. But we have no occasion to express a decided opinion on the question, and only advert to it because it had been so fully considered in the arguments of counsel.
Another question is suggested by the case, whether if the defendants had not paid Luther before his fraud was discovered, they might not in some form be compelled to make compensation to the plaintiffs for the benefit which the defendants would receive from the property. The civil law seems to compel compensation in similar cases, but we are not aware of any decision on the subject at common law and express no opinion in regard to it.
A new trial is not advised.
In this opinion the other judges concurred.