Samuel v. Holbrook, Cabot & Rollins Corp. , 141 N.Y.S. 275 ( 1913 )

Hotchkiss, J. (dissenting):

If, when appellant took the iron, the lighter’s contract to deliver had been completed, a different question would be presented from that raised by the record, because it might be claimed that the captain’s authority to deliver had been exhausted and that he would thereafter have been a mere agent or bailee to hold the iron for the. owner, and as such would have had no right to allow possession to be taken by a stranger. But no claim is made, or could be made on this record, that the iron had been delivered to the government or that the obligation of the lighter or of the plaintiffs in that behalf had been performed. As it appears to me at the time appellant came into possession of the iron the captain of the lighter was the agent of his employers to deliver the iron to the true owner. By mutual mistake, due as much to the captain’s carelessness as to the appellant’s, delivery was made to it. Possession under such circumstances would not subject appellant to an action for conversion without demand. (Gillet v. Roberts, 57 N. Y. 28; Pease v. Smith, 61 id. 477; Castle v. Corn Exchange Bank, 75 Hun, 89; affd., 148 N. Y. 122.) When the respondents made théir demand appellant expressed its willingness to accede to it, provided respondents would identify the iron. The respondents’ letter of May 6, 1910, shows that they refused to attempt to identify the iron, because it had been indistinguishably mixed with other iron of appellant, for which reason respondents admitted that compliance with their demand by the appellant was impossible. No claim is made that such mixing was not a perfectly innocent act -on appellant’s part, the result, in natural sequence, of the original mistaken delivery. Under such circumstances, appellant’s failure to comply with the demand was not evidence of conversion. (Gillet v. Roberts, supra; Hill v. Covell, 1 N. Y. 522; Whitney v. Slauson, 30 Barb. 276; Hills v. Snell, 104 Mass. 173. See, also, Silsbury v. McCoon, 3 N. Y. 379.)

The judgment, should be reversed and the complaint dismissed.

Judgment and order affirmed, with costs.