61 N.Y. 477, Pease v. Smith

Citation61 N.Y. 477
Party NameERASTUS H. PEASE et al., Respondents, v. HENRY SMITH et al., Appellants.
Case DateJanuary 01, 1875
CourtNew York Court of Appeals

Page 477

61 N.Y. 477

ERASTUS H. PEASE et al., Respondents,

v.

HENRY SMITH et al., Appellants.

New York Court of Appeal

January 1, 1875

Argued Sept. 22, 1874.

Page 478

[Copyrighted Material Omitted]

Page 479

COUNSEL

Amasa J. Parker for the appellants. It was error to permit plaintiffs to prove that their porter had been arrested and convicted for stealing the goods and sent to prison. (Baird v. Gillett, 47 N.Y. 186.) There can be no conversion by exercising control over property, unless it is done knowingly. (Barrett v. Warren, 3 Hill, 348, 350; Millspaugh v. Mitchell, 8 Barb., 33; Tallman v. Turck, 26 Id., 167.) The judge erred in refusing to charge that the jury should require clear and positive evidence before they could make defendants liable. (2 Bouv. L. Dic., "Positive; " 3 Bouv. Inst., n. 3057.) The judge erred in refusing to charge that if plaintiffs' negligence contributed to the loss of their property they had no legal claim against an innocent purchaser. (Hill v. Snell, 6 Am. R., 217; 104 Mass., 173; 20 Pick., 415.)

W. Packer Prentice for the respondents. Errors in the reception of evidence, so long as the amount recovered is not excessive, should not now be considered. (Bronson v. Tuthill, 3 Keyes, 32; Schappner v. Second Ave. R. R., 55 Barb., 497.) The facts and evidence were sufficient to have sustained a larger recovery. (Parker v. Jervis, 3 Keyes, 271; Bronson v. Tuthill, Id., 32; Disbrow v. Tenbroeck, 4 E. D. S., 397; Channon v. Lusk, 2 Lans., 211; Keeler v. Firemen's Ins. Co., 3 Hill, 251; Barrett v. Warren, Id., 348; Winne v. McDonald, 39 N.Y. 233; Chubbuck v. Vernam, 42 Id., 432; Laning v. N.Y. C. R. R., 49 Id., 524.) A sale of chattels by one not owning them, or having authority to sell, confers no title, even if the vendor is in possession at the time of the sale and the vendee purchases in good faith. (Hoffman v. Carow, 22 Wend., 285; Dudley v. Hawley, 40 Barb., 397; Spaulding v. Brewster, 50 Id., 142; Cobb v. Dows, 10 N.Y. 335; Boyce v. Brockway, 31 Id., 490; Ballard v. Burgett, 40 Id., 314; Brown v. Peabody, 13 Id., 121;

Page 480

Everitt v. Coffin, 6 Wend., 604; Connah v. Hale, 23 Id., 462; Salters v. Everett, 20 Id., 270; Covill v. Hill, 4 Den., 323; Disbrow v. Tenbroeck, 4 E. D. S., 397; Murray v. Burling, 10 J. R., 172; La Place v. Aupoix, 1 J. Cas., 407; 1 Smith's L. Cas., 892.)

DWIGHT, C.

There are several objections raised by the defendants on this appeal.

I. It is claimed that the judge erred at the trial in refusing to grant a nonsuit, because the defendants bought the goods in controversy in the course of trade, and had sold them before any claim was made by the owners. It is insisted by the appellant that it is a prerequisite to a valid claim for conversion, in such a case, that a demand should have been made for the goods while they were in the defendants' possession, and before their sale, and that there can be no conversion, unless control over the property was exercised with knowledge of the plaintiffs' rights. This proposition is untenable. The assumed sale by the porter of the plaintiffs to Perry was wholly nugatory, and conveyed no title. (Saltus v. Everett, 20 Wend., 267; McGoldrick v. Willets, 52 N.Y. 612.) On like grounds, the sale by Perry to the defendants was without effect. They were constructively in possession of the plaintiffs' property without the consent of the latter. They even sent their own carts to transfer the goods when sold to Allen Brothers. This exercise of an act of ownership or dominion over the plaintiffs' property, assuming to sell and dispose of it as their own, was, within reason and the authorities, an act of conversion to their own use. The assumed act of ownership was inconsistent with the dominion of the plaintiffs, and this is of the essence of a conversion. Knowledge, and intent on the part of the defendants, are not material. So long as the defendants had exercised no act of ownership over the property, and had acted in good faith, a demand and refusal would be necessary to put them in the wrong and to constitute conversion. Until such demand, there is no apparent inconsistency between their possession

Page 481

and the plaintiffs' ownership. After a sale has been made by the defendants, they have assumed to be the owners, and will be estopped to deny, in an action by the lawful owner, the natural consequences of their act, and to resist an action for the value of the goods. The principle is well stated by ALDERSON, B., in Fouldes v. Willoughby (8 M. & W., 540): "Any asportation of a chattel for the use of the defendant or a third person amounts to a conversion for this simple reason, that it is an act inconsistent with the general right of dominion which the owner of a chattel has in it, who is entitled to the use of it at all times and in all places. "In the same spirit, "conversion" is defined, in a very recent case, to be an unauthorized act which deprives another of his property permanently or for an indefinite time. (Hiort v. Bott, L. R. [ 9 Ex.], 86 [A. D. 1874].) So, it is said in Boyce v. Brockway (31 N.Y. 490), that a wrongful intent is not an essential element in a conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. [a1] No manual taking, on the defendants' part, is necessary. (Bristol v. Burt, 7 J. R., 254; Connah v. Hall, 23 Wend., 462.) The case of Harris v. Saunders (2 Strobh. Eq., 370), resembles closely the case at bar. The defendant having the property of the plaintiff in his own hands by purchase from one who had no title, sold it to another who carried it beyond the plaintiff's reach, and received the purchase-money. These acts were held to amount to a conversion, though the defendant was not aware of the plaintiff's title. As, according to these views, the conversion took place at the moment of the unauthorized sale by the present defendants, no demand was necessary, the sole object of a demand being to turn an otherwise lawful possession into an unlawful one, by reason of a refusal to comply with it, and thus to supply evidence of a conversion. (Esmay v. Fanning, 9 Barb., 176; Vincent v. Conklin, 1 E. D. Smith, 203; Glassner v. Wheaton, 2 Id., 352; Munger v. Hess, 28 Barb., 75.) After a wrongful

Page 482

taking and carrying away of the property, the cause of action has become complete without further act on the plaintiff's part. (Brewster v. Silliman, 38 N.Y. 423; Hanmer v. Wilsey, 17 Wend., 91; Otis v. Jones, 21 Id., 394.)

II. Another point, and one on which the defendants laid much stress is, that the judge on the trial permitted the plaintiffs to prove, under objection, that the porter was arrested and convicted of this theft, and sent to the Clinton State prison. It is urged that this testimony was entirely immaterial and irrelevant, and calculated to prejudice the defendants' case in the opinion of the jury. The plaintiffs reply to this objection, that they introduced it to account for the absence of Mason from the trial as a witness. I think that they had a right to account for Mason's absence. It may not have been strictly necessary, and yet it was proper. The case was made up of shreds and patches of circumstantial evidence. There was enough for the jury to act upon, and yet direct evidence would have been far more satisfactory. A failure to account for Mason's absence would have been likely to have weakened, in the minds of a jury, a case that was not very distinctly proved. In this view, the plaintiffs had a right to give a complete account of Mason's absence, and to show that he was not only in Clinton prison, but there for a crime which would incapacitate him from testifying and would render a writ of habeas corpus ad testificandum useless and inoperative. It may, however, be claimed that the question should have been a general one, whether Mason was sentenced to State prison,...

To continue reading

FREE SIGN UP
97 practice notes
  • 68 F.2d 676 (10th Cir. 1934), 839, Prudential Ins. Co. of America v. Faulkner
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • January 12, 1934
    ...effect on the opposing party or may arouse the jury. Hussmann v. Leavell & Sherman (Tex. Civ. App.) 20 S.W.2d 829; Pease v. Smith, 61 N.Y. 477; Vicksburg & J.R. Ry. Co. v. Patton, 31 Miss. 156, 66 Am.Dec. 552; Hiller v. Village of Sharon Springs, 28 Hun. (N.Y.) 344; Orscheln v. Scot......
  • 220 S.W. 1022 (Mo.App. 1920), Rollins v. Business Men's Accident Association of America
    • United States
    • Missouri Court of Appeals of Missouri
    • February 28, 1920
    ...very facts in dispute are communicated by those who have the actual knowledge of them by means of their senses." [See Pease v. Smith, 61 N.Y. 477.] As to what direct and positive evidence is, see 1 Jones on Evidence, section 6, page 29; see, also, 3 Words & Phrases (First Ed.), pag......
  • 193 N.Y. 92, MacDonnell v. Buffalo Loan, Trust and Safe Deposit Co.
    • United States
    • New York New York Court of Appeals
    • October 6, 1908
    ...L. T. & S.D. Co. v. Medina Gas Co., 162 N.Y. 67; Goodwin v. Wertheimer, 99 N.Y. 149; Tallman v. Turck, 26 Barb. 167; Pease v. Smith, 61 N.Y. 477; Briggs v. Jones, 8 Misc. Rep. 261; 149 N.Y. 577; Ranous v. Hughes, 19 Misc. 46; Korneman v. F. H. B. Co., 4 Misc. Rep. 299; Ganley v. T. C. N......
  • 77 S.W.2d 110 (Mo. 1934), State v. Gillum
    • United States
    • Missouri Supreme Court of Missouri
    • December 1, 1934
    ...dominion or control over it. [Klein v. Cohen, 127 N.Y.S. l. c. 174, 142 A.D. 500; Ferra v. Parke, 23 Pac. l. c. 885; Pease v. Smith, 61 N.Y. 477; Trust v. Tod, 170 N.Y. 233; Mohr v. Langan, 162 Mo. 474; Velzian v. Lewis, 16 P. 631.] "There can be conversions under such circumstances as......
  • Free signup to view additional results
97 cases
  • 68 F.2d 676 (10th Cir. 1934), 839, Prudential Ins. Co. of America v. Faulkner
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • January 12, 1934
    ...effect on the opposing party or may arouse the jury. Hussmann v. Leavell & Sherman (Tex. Civ. App.) 20 S.W.2d 829; Pease v. Smith, 61 N.Y. 477; Vicksburg & J.R. Ry. Co. v. Patton, 31 Miss. 156, 66 Am.Dec. 552; Hiller v. Village of Sharon Springs, 28 Hun. (N.Y.) 344; Orscheln v. Scot......
  • 220 S.W. 1022 (Mo.App. 1920), Rollins v. Business Men's Accident Association of America
    • United States
    • Missouri Court of Appeals of Missouri
    • February 28, 1920
    ...very facts in dispute are communicated by those who have the actual knowledge of them by means of their senses." [See Pease v. Smith, 61 N.Y. 477.] As to what direct and positive evidence is, see 1 Jones on Evidence, section 6, page 29; see, also, 3 Words & Phrases (First Ed.), pag......
  • 193 N.Y. 92, MacDonnell v. Buffalo Loan, Trust and Safe Deposit Co.
    • United States
    • New York New York Court of Appeals
    • October 6, 1908
    ...L. T. & S.D. Co. v. Medina Gas Co., 162 N.Y. 67; Goodwin v. Wertheimer, 99 N.Y. 149; Tallman v. Turck, 26 Barb. 167; Pease v. Smith, 61 N.Y. 477; Briggs v. Jones, 8 Misc. Rep. 261; 149 N.Y. 577; Ranous v. Hughes, 19 Misc. 46; Korneman v. F. H. B. Co., 4 Misc. Rep. 299; Ganley v. T. C. N......
  • 77 S.W.2d 110 (Mo. 1934), State v. Gillum
    • United States
    • Missouri Supreme Court of Missouri
    • December 1, 1934
    ...dominion or control over it. [Klein v. Cohen, 127 N.Y.S. l. c. 174, 142 A.D. 500; Ferra v. Parke, 23 Pac. l. c. 885; Pease v. Smith, 61 N.Y. 477; Trust v. Tod, 170 N.Y. 233; Mohr v. Langan, 162 Mo. 474; Velzian v. Lewis, 16 P. 631.] "There can be conversions under such circumstances as......
  • Free signup to view additional results