Semple v. Morganstern

The trial court concluded that the defendant did not convert the car to his own use. This conclusion the court reached upon the theory that whatever the defendant did was done in a representative capacity, acting for and in behalf of the company of which he was the president. The defendant's refusal to deliver to plaintiff her car upon demand, except upon condition that she repay the expenses incurred by him in towing the car from her premises to those of his company, was a conversion at that time of the car, since it was an unlawful exercise of dominion over the car, and a deprivation of plaintiff's right to its immediate possession. Metropolis Mfg. Co. v.Lynch, 68 Conn. 459, 470, 36 A. 832; Semon v. Adams,79 Conn. 81, 63 A. 661. Where one purchases personal property in the belief that he is acquiring a lawful title to the same from the vendor, and later finds that the vendor had no right to convey title, his retention of possession, after he has learned or had reasonable means of knowing that the vendor had no right to convey, is a conversion giving the owner a right of action in trover. 2 Cooley on Torts (3d Ed.) p. 866. The defendant, as president of his company, was acting for it and with authority in his purchase of this car and in its retention, so that the company is plainly liable in trover for this conversion.

The question raised by the appeal is whether the defendant, who acted in his representative capacity as president, is also liable in trover. An agent cannot defend in an action of trover against him by pleading that he acted for another. An agent of an individual, firm, or corporation, is guilty of a conversion who buys or sells the property of another for his principal, without authority from the owner. And his ignorance of the owner's title and his belief in his right to buy or to sell, will not relieve him of liability. Kimball v.Billings, 55 Me. 147, 151; Gage v. Whittier,17 N. H. 312, 320; Singer Mfg. Co. v. King, 14 R. I. 511, 512;McDonald v. McKinnon, 92 Mich. 254, 52 N.W. 303;McPartland v. Read, 93 Mass. (11 Allen) 231; Warder-Bushnell Glessner Co. v. Harris, 81 Iowa 153,46 N.W. 859; 26 R. C. L. p. 1139, § 52. The general rule is thus stated by Cooley (3d Ed., Vol. 1) p. 244: "All who actively participate in any manner in the commission of a tort, or who command, direct, advise, encourage, aid or abet its commission, are jointly and severally liable therefor." Under this generally accepted rule, both principal and agent, who is himself a participant in the conversion, are liable in trover.Wing v. Milliken, 91 Me. 387, 389, 40 A. 138; Perminter v. Kelly, 18 Ala. 716, 718; Singer Mfg. Co. v.King, 14 R. I. 511, 512; Bowers, the Law of Conversion, p. 223, § 306.

No case has reached this court exactly similar in its facts to the case at bar. But the same principle was involved in the cases which hold an officer liable for the unlawful removal and retention of the personal property of a stranger to the suit, by direction of the plaintiff in that action, as well as the plaintiff himself. Both are guilty of a conversion. Calkins v. Lockwood,17 Conn. 154; Pearne v. Coyne, 79 Conn. 570, 577,65 A. 973. The authorities with substantial unanimity sustain this principle.

There is error and a new trial is ordered.

In this opinion the other judges concurred, except GAGER, J., who concurred in the result, but died before the opinion was written.