Barker v. Dinsmore
| Decision Date | 17 May 1872 |
| Citation | 72 Pa. 427 |
| Parties | Barker et al. v. Dinsmore. |
| Court | Pennsylvania Supreme Court |
1. A man representing himself connected with Barker & Co. contracted with Dinsmore for wool for them; to be consigned to them to Pittsburg and paid for there. The man representing to Barker & Co. that he was Dinsmore's son, contracted to sell them wool; it arrived at Pittsburg before Dinsmore; was delivered to the man, and by him to Barker & Co., who paid him. The jury found that the sale was not to the man on his own responsibility, but as agent for Barker & Co. Held, that the ownership of Dinsmore was not divested.
2. Sale of goods tortiously obtained without the owner's consent gives the purchaser no title against the owner, although purchased for a fair consideration and in the usual course of trade, without any suspicious circumstance to awaken inquiry.
3. An owner cannot be divested of his property without his consent unless he has placed it in the custody of another and given him an apparent right to dispose of it.
Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.
Error to the District Court of Allegheny county: No. 188 to October and November Term 1871.
This was an action of replevin brought December 6th 1869, by John Dinsmore against William Barker, Jr., and Jesse B. Kilgore trading as William Barker, Jr., & Co., for 45 sacks of wool, containing 7632 1/2 pounds, of the value $3816.25.
The defendants gave a claim-property bond and retained the goods.
The cause was tried October 18th 1870, before Hampton, P. J.
The plaintiff resided near Burgettstown, Washington county, being also near Dinsmore Station, on the Pan Handle Road. In November 1869, he owned the wool in question. On a Friday in the latter end of that month, a man saying his name was Barker, and representing himself as a cousin of William Barker, Jr., of the firm of William Barker, Jr. & Co., who were wool merchants in Pittsburg, came to plaintiff's house and asked if he had wool for sale. Being informed that he had, the man said he would return on the next Monday, which he did, and agreed, after some negotiation, to purchase from the plaintiff 6000 pounds of wool, more or less. He produced to the plaintiff the business card of defendants, viz.:
PITTSBURG, PA.
At this time he brought with him 43 wool-sacks, marked " Wm. Barker, Jr., & Co., Pittsburg, Pa."
On inquiry by the plaintiff how he should be paid, the man told him he could come into Pittsburg on Saturday and get his money.
MR. DINSMORE-- Sir: Haveing to go to the above place last eve on busyness, I thought that I would drop you a note as I pass your place; the agent at Pitt. thinks it will be the third day before the wool can be unloaded, and perhaps it would be safer for you to come on Monday for fear you should not get home Saturday. You spoke of writing, but you need not trouble yourself writing, as the agent will forward the Bill to us immediately.
Dinsmore, Dec. 3d 1869.
Received from John Dinsmore, the following packages, in apparent good order, marked as per margin, which the Pittsburg, Cincinnati and St. Louis Railway Co., agree to deliver, in like order, the incidental damages of the railroad, fire in cars and at stations excepted, to Barker & Co., or order, at the company's freight station at Pittsburg, he or they paying freight and charges (at the rate established as per company's tariff sheet), as it arrives in the cars. The company will not be responsible for leakage of molasses, when caused by fermentation, nor for leakage of any kind, nor for loss or damage arising from the incidental dangers of railroad transportation, unless the same be proved to have occurred by the gross negligence of their agents or servants.
| Marks. | Articles. |
| Wm. Barker, Jr., & Co. | 45 sacks Wool, |
| 7789 lbs. |
| J. D. ALLINDER, Agent. " |
By arrangement with the man, the plaintiff shipped the wool in his own name, consigned to defendants, and directed the agent at Dinsmore Station to ship the wool just as the sacks were marked.
The plaintiff had all the wool shipped by Saturday afternoon, and came into Pittsburg on Monday. He went to Barker & Co.'s wareroom and inquired if Dinsmore's wool had come to hand; he was informed that they had bought a lot of wool on Saturday from a man calling himself Martin Dinsmore, who said it was his father's wool, and they had paid him for it on that day at 40 cents; defendants informed plaintiff that the man said his father had sold his farm and wished to sell his wool; they said the young man had produced samples, and they had given sacks to him. Plaintiff held the bill of lading as security till he should come to Pittsburg.
The agent at Dinsmore's Station shipped the wool to Barker & Co., Pittsburg. After the wool was unloaded it was delivered by the railroad agent to the man, and by him to Barker & Co.'s drayman, who gave a receipt, viz.:
The railway company gave notice to Barker & Co. on Saturday morning of the arrival of the wool.
The foregoing, with much more to the same points, was the evidence of the plaintiff.
The defendant's evidence was that on the 29th of November 1869 a man calling himself Martin Dinsmore came to their store with samples of wool, which he said he had out at home, five miles back of Burgettstown, Washington county; they agreed to purchase of him at 45 cents per pound, if the wool was equal to the samples. He asked them to send sacks by the Pan Handle Railroad, and he would be at the station and meet them; he directed them to be marked " Martin Dinsmore, Burgettstown Station." On Saturday he came with O'Brien, the drayman, with a load of wool; after examining the wool, the defendants expressed dissatisfaction with its quality, but they finally arranged to take it at 40 cents per pound, and paid him $3050 in cash for 7625 pounds; he left about 3 1/2 o'clock on Saturday afternoon. On Monday about 10 o'clock the plaintiff came to defendants' store, and asking for Mr. Barker, was referred to that member of the firm; plaintiff said he was not the Barker who had been to his place and bought the wool, and who said he was a cousin of William Barker, who was lying sick of typhoid fever, and had heard plaintiff had a lot of wool, and plaintiff had sold it to him for 50 cents per pound.
The defendants gave other evidence, which in some of its details was contradictory of plaintiff's evidence.
The following were plaintiff's points and their answers:--
1. If the jury believe, from the evidence, that the plaintiff agreed with a party, representing himself to be a member of the firm of Wm. Barker, Jr., & Co., to sell his wool to said firm, and said representation was false and fraudulent, and made without the knowledge or authority of said firm, no title to the wool passed to said William Barker, Jr., & Co.
Answer: " This point is affirmed."
4. Even if the man calling himself Martin Dinsmore did not represent to the defendants, or either of them, that he was the son of John Dinsmore, and the wool was his father's, but claimed to be the owner of the wool himself, and the railway company delivered the wool to the drayman, T. O'Brien, as the agent of the pretended Martin Dinsmore, or to the man Martin Dinsmore himself, his possession of the wool thus acquired being without right or color of right, he could not vest a title in the defendants by a sale to them.
Answer: " As we have said in our general charge, if this pretended Martin Dinsmore, or Barker, acquired no title to this wool by his alleged purchase from the plaintiff, he could convey no title to the defendants, no matter how he obtained the possession from the railroad company, it could give him no title, because it had no title to convey."
The following are points of the defendants and their answers:--
2. If the jury find, from the evidence, that the plaintiff, John Dinsmore, sold the wool in controversy to a person represented by the name of " Barker" or " Dinsmore," and delivered the wool according to and in pursuance of the terms of the contract of sale, the property vested in the purchaser in so far as to enable him to make a good and valid sale of the wool to any bonâ fide purchaser, who had no notice or knowledge of the fraud practised by him.
Answer: " This point is sufficiently answered in the general charge."
3. If the plaintiff sold the wool in controversy to Martin Dinsmore, alias Barker, believing him to be a member of the firm of Wm. Barker, Jr., & Co., defendants, and in pursuance of the contract of sale delivered the wool at Dinsmore station to be delivered by the railroad to Barker & Co., and the wool was delivered to Dinsmore, alias Barker, at Pittsburg, and he sold it to the defendants at a fair market price, without knowledge or notice of the alleged fraud, they have a good title to the wool, and the plaintiff cannot recover.
Answer: " The court decline to affirm this point in the terms in which it is stated, but refer to our general charge."
4. If from all the evidence in the...
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