Jones v. Hodgkins , 61 Me. 480 ( 1872 )

Tapley, J.,

dissenting. One McLaine being the owner of certain logs, then in a boom, sold and conveyed them to the plaintiff in March, 1871. The defendant, being employed by McLaine as commission merchant to sell all his logs, did undertake to sell these logs in April following, not knowing McLaine had before sold them, and in pursuance of his contract run them out of the boom and delivered tbein to one Walker. The defendant having done this the plaintiff demanded the logs of him, and they not being delivered he brought this action. It will be noticed the controversy arises between Jones, the purchaser of the owner, and an agent of the owner, and not between Jones, as purchaser, and Walker, as purchaser.

As between Jones'and McLaine’s agent where was the title? Where was the title from March to April ? The instruction proceeds upon the ground and theory that the owner had sold and conveyed the logs to the plaintiff in March. These terms aré broad enough to warrant the conclusion that the title had passed from McLaine to Jones, and that the logs actually belonged to Jones when the defendant seized them.

This being the case the defendant, in April, seized certain logs that the plaintiff had owned a month. Now, what is his justification ? It is simply that he supposed they belonged to McLaine, and having a general authority to sell all his logs he supposed he was authorized to sell these. Does this erroneous supposition make any difference so far as title is concerned ? It is not denied that had the defendant known of the sale to the plaintiff he would have been liable, and wre tbink it quite clear he would be because he would have been intermeddling with property he knew belonged neither to himself nor his principal. It is very apparent that his knowledge or -want of knowledge in novóse affected the title from March to April. We are therefore brought to the question whether trover can be maintained against one who sells another property, believing lie lias a right so to do, when in fact he has no such right.

We know of no rule of law that will excuse a man from liability under such circumstances. His ignorance may be purely his own fault or that of another. But this cannot affect the rights of the owner, Every man assuming control of property mast see to it he has a legal right so to do, and if he lias no such right he must respond in damages to the innocent party.'

Whether that which took place between McLaine and Jones operated as a sale and conveyance of the logs to the plaintiff we do not decide. The instruction given assumes that it did, and for the purpose of this discussion we must treat it as if it did, and so treating it we think the defendant should have responded on demand, and not doing so is liable in this action.

Waltos and Barrows, JJ., concurred in this opinion.