Dusky v. Rudder , 80 Mo. 400 ( 1883 )

Sherwood, J.

This is an action instituted before a justice of the peace, R. W. Mitchell, of Jefferson township, Linn county. The plaintiff*’s statement is as follows:

Plaintiff states that the defendant owes plaintiff the sum of $60, now due, for the value of twelve head of grown sheep and - lambs, the increase of said sheep, which were sold and delivered by defendant and one A. Y. Husky, to one Gabriel Watterson, without the authority and against the will of plaintiff*, heretofore, to-wit, on the — day of -, 1880, and the proceeds of said sale for said sheep were received by defendant and converted and appropriated to his own use and benefit. That said sheep, when so sold and delivered, were the property of the plaintiff. "Wherefore plaintiff prays judgment for said sum of $60, with interest and cost of suit.

And plaintiff further states that defendant owes plaintiff the sum of $25.60 for and on account of said amount of money received by defendant for twelve fleeces of wool, which said wool was the property of plaintiff", and which was sold by defendant and one A. V. Dusky, to one A.’Wall-brunn, heretofore, to-wit, on the — day of-, 1880, and which said money has been converted and appropriated to defendant’s own use and benefit. Wherefore plaintiff prays judgment for said sum of twenty-five dollars and sixty cents and for interest and costs.

The controlling question in this record is whether a conversion of plaintiff’s sheep or their wool, or the proceeds of either took place as' charged in the complaint. If the evidence establishes that a conversion of plaintiff’s property occurred in either of these ways, and that the defendant in any manner aided in such conversion, the law holds him chargeable therewith and responsible therefor. True, a mere bailee, whether common carrier or otherwise, may receive property from one not rightfully entitled to possession and may deliver it in pursuance of the bailment, if this is done before notice of the rights of the real owner. After such notice he acts at his peril. Cooley on Torts, 456. And the evidence tends to show notice to the defendant, and a conversion by him of the property of the plaintiff and of its proceeds. Any wrongful act which negatives or is inconsistent with the plaintiff’s right is per se a conversion. Koch v. Branch, 44 Mo. 542; Williams v. Wall, 60 Mo. 318; State v. Berning, 74 Mo. 87.

In Koch v. Branch, supra, an agent who collected money on a stolen voucher for an innocent purchaser thereof, was held liable for its value to the true owner, and that in order to such liability it was not necessary that the agent should use the proceeds of the conversion to his own benefit. In the case just cited, that of Hoffman v. Carow, 22 Wend. 285, is approvingly mentioned, where an auctioneer was held liable to the owner of stolen goods, although such auctioneer sold them in the usual course of trade, without knowledge of the felony or the claim of the owner, and paid the proceeds to the person for whom the sale was made. In this case, as there was evidence of other acts of the defendant showing a conversion of the sheep and their proceeds, etc., it was quite immaterial whether he actually sold the sheep or their fleeces or not. For this reason the instructions asked by plaintiff numbered one and two should have been given without any modification, and the fact that A. Y. Dusky had mortgaged the sheep in question along with others of his own, without the plaintiff’s consent, and that defendant was acting as the mortgagee’s agent in retaining possession of the sheep and in receiving the money to a sufficient amount tq.pay off and discharge the mortgage could not better his condition or make him less liable to an action. For this reason instruction number three asked by plaintiff should have been given. This instruction virtually told the jury that the mortgage of the sheep to Barnes was no protection to the defendant; nor was it,-nor should it have been admitted in evidence since'it. was wholly foreign to the issues in the ease.

It is true that the error of admitting in evidence the Barnes mortgage was not called to the attention of the court inithemotion for new trial, but the discussion of the mortgage bas become necessary owing to its being referred to in-plipatiff ’s' third instruction as well as in defendant’s first instruction. And if the instructions asked by plaintiff’ should have been given without modification, it results therefrom that defendant’s instructions should have been refused. Defendant’s acts in retaining possession of the mortgaged property as the agent of Barnes after being apprised of plaintiff’s rights, and after such notification thereof, retaining the proceeds of the sale and refusing to deliver to plaintiff any portion thereof, was clearly a conversion, and this, regardless of what the motive of the defendant may have been. If Barnes had taken possession of plaintiff’s sheep by virtue of his mortgage he would have been answerable to plaintiff, and his agent cannot occupy any better position. Nor does it matter as. affecting the question of defendant’s liability, that it was difficult to distinguish plaintiff’s sheep from the others in the flock, and this is especially true, if as the evidence tended to show, the marks of plaintiff’s sheep had been changed by A, V. Dusky. Cooley on Torts, 53, 54.

Therefore judgment reversed and cause remanded.

All concur.