Burditt v. Hunt , 25 Me. 419 ( 1845 )

The opinion of the Court was drawn up by

Shepley J.

This is an action of trover for goods claimed under a conditional bill of sale made to the plaintiffs by Robert Kellen. It was without date, and was duly recorded on February 1, 1842. A part of the property conveyed is described as all the goods “ now in the shop occupied by me in Bangor.”

In defence, it is contended that parol testimony ought not to have been received to prove the date of its execution, because the statute, c. 125, § 32, requires, that there should be written evidence of such a sale; and that without such testimony the conveyance would be void for uncertainty. The true date of the execution and of the delivery of a written instrument may be proved, without a violation of the rule, that would exclude all such testimony to contradict or vary the terms of it. Hall v. Cazenove, 4 East, 477. It does not appear to have; been the intention to establish by the statute a different rule respecting mortgages of personal property. The goods, which were in the shop at the time of delivery might be ascertained by testimony, and the description would be sufficient to convey them.

The goods having been left in the possession of the mortgagor with authority to sell them for cash in small parcels, he sold and delivered those, for which this action was brought, to the defendant, Hunt; but in so doing exceeded his authority. There was testimony tending to prove, that the other defendant, McMullen, as the servant of Hunt, was sent for them, and that he received them by the delivery of the mortgagor, and deposited them in Hunt’s shop; that he was ignorant of the existence of the mortgage and of the terms of the sale to Hunt; and that he had no other connexion with them.

The jury were instructed, if Hunt was liable, and McMul-len, as his servant, aided him in removing the goods, he would be liable for those, which he removed. A servant, who receives goods delivered to him and carries and delivers them to his master, can be held responsible for them in action of trover only, on the ground, that such a removal of them amounts to a conversion. If such a position could be maintained, common carriers and other persons, by receiving goods delivered to them by a person in possession of them, and carrying them to another place would thereby be made liable for their value, if it should afterward be made to appear, that the goods were delivered without authority from the owner. And yet the possession of personal property is, prima facie, evidence of ownership. Such a position cannot however be sustained. Conversion is the gist of the action of trover; and conversion is a tort. Draper v. Fulkes, Yel, 165; Fuller v. Smith, 3 Salk. 366. When goods come to the possession of a person by delivery or by finding, he. is not liable in trover for them without proof of a tortious act. 2 Saund. 47, e. Mulgrave v. Ogden, Cro. Eliz. 219.

The reception of them by delivery from one, whom he is entitled to regard as the owner, and the conveyance from him to another, to whom they are sent, are not tortious acts. In the case of Parker v. Godin, 2 Strange, 813, the defendant, who acted as the friend or servant of another, was held liable in such an action, because he pawned the goods in his own name, which had been improperly delivered to him. In the case of Perkins v. Smith, 1 Wil. 328, a bankrupt after the act of bankruptcy delivered goods to a servant to be carried to his master, and the servant sold them for his master’s use, and was held to be liable for them in such an action. In both these cases the servant was considered to be liable only on the ground, that they committed tortious acts by pawning and selling the goods. A refusal to deliver goods on a demand made by the owner may be a tortious act and a conversion by one, who is in possession of them. There is no evidence exhibited in this case tending to prove, that the servant committed any tortious act; or that he assisted his master in such an act.

Exceptions sustained, and new trial granted.