Hills v. Snell , 104 Mass. 173 ( 1870 )

Wells, J.

The defendant acquired no title to the flour delivered to him by mistake. He had no contract of purchase with the owner, nor with the plaintiffs, who were bailees of the owner. If he had received it with knowledge of the mistake, or used it after notice thereof, he would have been liable for the conversion. But, under the instructions of the court, the jury must have found that the defendant was not chargeable with notice oi knowledge that the. flour delivered was not the same he had bought; and that he used it in good faith, deriving no benefit from the plaintiffs’ mistake. No demand appears to have been made upon him while the flour was in his possession. So that, if he is to be held responsible at all, it must be on the ground that he used the flour as his own, “ supposing and believing it' to be the flour he had bought” and paid for.

The declaration contains one count in contract, upon implied assumpsit for the price or value of the flour; and one in tort. for its wrongful conversion. The action is brought by the ware-housemen, and is founded on their possession and special rights as bailees. But for all purposes of the defence the case stands precisely as if they were the general owners.

1. The facts will not support an implied assumpsit. There was no sale of the flour by the owner, nor by the plaintiffs. It was not delivered by the plaintiffs as upon any contract of sale with them, either as principal or as agents; but distinctly as a mere delivery to Kemble & Hastings under an order for other flour, of which they were also bailees for another principal. Both the sale and the delivery to the defendant were made by Kemble & Hastings. With them he had an express contract; and that is the only contract he can be held to have made in regard to the flour. There is no privity of contract established between the plaintiffs and the defendant. Without such privity, the possession and use or conversion of the property will not sustain an implied assumpsit. Ladd v. Rogers, 11 Allen, 209.

2. The elements of tort are also wanting. The unauthorized appropriation of personal chattels will generally be sufficient of itself to enable the true owner to maintain an action for their conversion. A purchase, in good faith, from one who has no title and no right to transfer the property, will not constitute a defence. Even an auctioneer or broker, who sells property for one who has no title, and pays over to his principal the proceeds, with no knowledge of the defect of title or want of authority, is held to be liable for its conversion to the real owner. Coles v. Clark, 3 Cush. 399. Williams v. Merle, 11 Wend. 80. Hoffman v. Carow, 20 Wend. 21; S. C. 22 Wend. 285. Courtis v. Cerne, 32 Verm. 232. But this severe rule of law will not be applied when the act of appropriation can be justified as having been authorized in any manner by the owner of the property. Thus when, upon a conditional sale, the property is delivered and time given for compliance with the condition, one who purchases and resells the property before the right to perfect the title, by such compliance, has been terminated, is not liable for a conversion to the general owner who subsequently resumes his right to its possession. Vincent v. Cornell, 13 Pick. 294 When the owner has given to another, or permitted him to have, control of the property, no one can be held responsible in tort for its conversion who merely makes such use of the property, or exercises such dominion over it, as is warranted by the authority thus given. Strickland v. Barrett, 20 Pick. 415. Burbank v. Crooker, 7 Gray, 158.

In this case, the plaintiffs delivered the flour to Kemble & Hastings as the flour purchased by them from Greenough. Against the plaintiffs, therefore, the delivery to Kemble & Hastings and the sale by them to the defendant was an authority to him to treat it as his own. That it was so delivered by mistake might have entitled the plaintiffs to reclaim the property from one having it in possession; or to recover its value from one who had disposed of it with knowledge of the mistake. Chapman v. Cole, 12 Gray, 141. But they cannot take advantage of their own mistake to convert into a tort that which has been done in good faith in pursuance of authority given by themselves.

The instructions given to the jury -were in accordance with these principles, and were sufficient. It is not necessary to consider in detail those prayed for. They do not reach the point upon which, in our view, the case turns.

Exceptions overruled.