Koch v. Branch

• Decision Date: 31 October 1869
• Citation: 44 Mo. 542
• Parties: AUGUST KOCH et al., Appellants, v. BRANCH & CROOKES, Respondents.
• Court: Missouri Supreme Court

44 Mo. 542

AUGUST KOCH et al., Appellants,

v.BRANCH & CROOKES, Respondents.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Finkelnburg & Rassieur, for appellants.

S. Knox, for respondents.

BLISS, Judge, delivered the opinion of the court.

In February, 1864, the plaintiffs were engaged in mercantile business at Fort Smith, Arkansas, and purchased of one Hunt, an army beef contractor, a commissary voucher issued to him for $1,448. Soon after its purchase it was stolen from the store, and the thief was never discovered. In February, 1865, one Richard Branch purchased the voucher of a stranger and forwarded it to his brother in St. Louis, one of the defendants, who collected it of the government and paid over the amount to his brother, charging no commissions. He was a partner of the firm of Branch, Crookes & Co., composed of defendants, and made the collection in their name. There seems to be no dispute about the facts, and, in the trial below, the court declared, as matter of law, that the plaintiffs were not entitled to recover.

It is admitted that the defendants received no benefit from the transaction; but the plaintiffs claim that the paper was not negotiable, and continued to be their property into whosesoever hands it went; that defendants controlled it for a time, converted it into money and paid it over, and thus were the cause of the plaintiffs' ultimate loss.

A voucher of this kind is simply an account against the government, approved by the officer who received the property embraced in it, and is paid on presentation. It is not, in the commercial sense, a bill of exchange or other negotiable instrument, and the law merchant has no application to it. It is, however, property, or rather, convenient representation of property, and when actually sold passes by delivery like other personal property. But the purchaser can acquire no greater right than that of the seller, and when the property is stolen there can be no further transfer. It does not, like a note or bill, become the property of an innocent holder by virtue of its negotiability, for he can only hold it as his own by virtue of his title, and no title can pass through a thief. This principle has no relation to the doctrine of title by purchase in market overt, for that is part of the common law never adopted in this country.

Admitting that Richard Branch had no title to the voucher when he sent it to the defendants for collection, does their agency in the matter so involve them in the plaintiffs' loss as to subject them to liability? The answer to this question depends upon the character given to such a voucher. If it is a mere account -- a memorandum of a claim, its loss is nothing. A new one could be made just as good. But it is much more. It is, as we have seen, an audited demand, specifically represented by the paper, and which will be paid only on its presentation. It, therefore, represents the claim, has value in itself, is an object of barter and sale, and I can see no reason why it should not be treated as other property. The liability of those who meddle with stolen property, and do anything in regard to it, by which the owner is prevented from recovering it, has been fixed by repeated adjudications. We are referred, in this country, to Hoffman v. Carow, 22 Wend. 285, which is an affirmance by the Court of Errors of a judgment of the Supreme Court, reported in 20 Wend. 21; and to Rogers v. Hine, 1 Cal. 420. In both cases an auctioneer was held liable to the owner of stolen goods for their value, although he sold in the usual course of trade, without knowledge of the felony or the claim of the owner, and paid over the proceeds to the person for whom the sale was made. His sale was construed to be a conversion, although made for the benefit of others. The doctrine of Hoffman v. Carow has never been departed from in New York or elsewhere that I know of, but...