Levi v. Booth

• Decision Date: 04 May 1882
• Citation: 58 Md. 305
• Parties: SOLOMON LEVI and HENRY LEVI v. ALFRED E. BOOTH.
• Court: Maryland Court of Appeals

58 Md. 305

SOLOMON LEVI and HENRY LEVI v. ALFRED E. BOOTH.

Court of Appeals of Maryland

May 4, 1882

APPEAL from the Superior Court of Baltimore City.

This was an action of trover brought by the appellee against the appellants, (father and son) for the conversion of a valuable diamond ring. The case is further stated in the opinion of the Court.

Exception.--The plaintiff offered two prayers, the second of which is omitted, the first is as follows:

1. If the jury shall believe that the plaintiff was the owner of the diamond ring spoken of in evidence; and that he entrusted it to De Wolff for the purpose of procuring another diamond ring as a match therefor, and that failing so to do, to procure him an offer therefor, and so entrusted to him for no other purpose, and shall find that said De Wolff left the same with defendants, and that they sold the same prior to the institution of this suit, and did not, and could not return the same when demanded of plaintiff, as spoken of in evidence, then plaintiff is entitled to recover such sum as they shall find said ring to have been worth at the time of such conversion, with such interest upon said sum, as they may deem proper to give under the circumstances given in evidence.

The defendant offered the following prayers:

1. That there has been no evidence offered legally sufficient to sustain the issues on the part of the plaintiff, as against Solomon Levi, one of the defendants, and that therefore, the jury must find for said defendants.

2. That if the jury find from the evidence, that the defendants came into possession by delivery of the ring, the property claimed in this action; but that at the time of the demand and refusal, he had not the ring in his possession, or under his control, and was not in a condition to deliver it up; that the demand and refusal is not evidence legally sufficient to prove a conversion by the defendants, if made when the property was not in his possession or under his control, and will not entitle the plaintiff to recover under the pleadings and evidence in this action.

3. That if the jury find from the evidence that the defendants came into possession of the ring by delivery, the property claimed in this action, and did exercise ownership over it, and did dispose of and convert it before he knew or had knowledge that the plaintiff, was the owner, or that he claimed to be the owner, that such acts do not amount to a wrongful conversion in law, and the plaintiff connot recover under the pleadings and evidence in this case.

4. That if the jury find from the evidence in this case, that De Wolff was a dealer in jewelry, and that with knowledge of that fact, the plaintiff then and there delivered and entrusted him with the possession of the ring the subject-matter of this action, and thereby put it into the power of the said De Wolff to dispose of the ring, or to do acts apparently as owner thereof, which will result in injury to innocent third persons, or to the principal, the law imposes the loss upon the principal; and if the jury further find, that the defendant so purchased the said ring from De Wolff in good faith, and for value, without notice, then the plaintiff cannot recover, and the verdict must be for defendants.

5. That if the jury find from the evidence that De Wolff was the agent of the plaintiff, and that under the circumstances mentioned in the fourth prayer of the defendants, he disposed of, and the defendant purchased the said ring, said De Wolff then and there acting as owner and as though he were the principal, without disclosing the principal or real owner that a payment then and there made to the said De Wolff although in fact an agent only, was good against any subsequent claim by the principal or real owner, and that the plaintiff cannot recover in this action.

6. That if the jury find from the evidence that De Wolff was a dealer in jewelry, and that plaintiff having such knowledge, then and there entrusted him with the possession of the ring, the subject-matter of this action, with authority to dispose of it, though the authority be limited by conditions as to money or price, and the jury further find that defendants had no means of ascertaining the limitations imposed upon De Wolff; and that defendants, without such knowledge or information, purchased the ring of De Wolff, believing him to be the owner, for value and in good faith, that the defendants acquired a good title, and the plaintiff cannot recover.

The Court (GILMOR, J.,) granted the plaintiff's prayers, and refused those of the defendants. The defendants excepted, and the verdict and judgment being for the plaintiff, they appealed.

The cause was argued before BARTOL, C.J., STONE, GRASON, MILLER, ALVEY, ROBINSON, IRVING and RITCHIE, J.

Robert D. Morrison, for the appellants.

Geo. Hawkins Williams, for the appellee.

ALVEY J., delivered the opinion of the Court.

In this case it appears that the plaintiff was the owner of a valuable diamond ring, and he placed it in the hands and possession of a party by the name of De Wolff, a dealer and trader in jewelry, for the purpose of obtaining a match for it, or, failing in that, to get an offer for it; and there is nothing in the proof to show that it was given into the possession of De Wolff for any other purpose, or that he was in any manner authorized to sell it.

The defendants were pawnbrokers, and dealt in articles of jewelry. De Wolff dealt with them, and made purchases on credit, and settled from time to time; and among other articles of jewelry, he purchased diamond rings, earrings, studs, watches, etc., and became considerably indebted to the defendants. He appears to have been a sort of street peddler of articles of jewelry,-- going from place to place and disposing of his articles upon the best terms he could make. He had no shop or established place of business.

On the part of the defendants the evidence tended to show, that De Wolff sold the ring to Henry Levi, one of the defendants, for a certain price,--part paid in cash, and the other part in goods. But, on the part of the plaintiff, proof was given, that before such alleged sale, Henry Levi had been informed that the ring belonged to the plaintiff, and that De Wolff had no power or authority to sell it. De Wolff, as witness, proved that he left the ring with Henry Levi to obtain an offer for it, but with no authority to sell it; while, on the other hand, Henry Levi testified that he purchased the ring of De Wolff, supposing him to have been the real owner of it. It was also proved, by the admission and statement of Henry Levi, when demand was made of the defendants by the plaintiff for the ring, that the ring had been sold to some person whose name he did not know or could not furnish.

The plaintiff brought his action in trover for the conversion of the ring, and recovered a verdict and judgment for the supposed value thereof.

At the trial, upon the evidence offered, the plaintiff submitted two prayers for instruction to the jury, and they were both granted; and the defendants submitted six prayers, all of which were refused; and to the rulings of the Court in respect to these several prayers, the defendants excepted.

Upon these prayers thus submitted, three principal questions are presented:

1st. Supposing it to be true, as contended by the defendants, that De Wolff did sell the ring to Henry Levi, one of the defendants, as if he were the owner thereof, when in fact he was not the owner, and had no express authority to sell it, whether, under the facts disclosed in evidence, such sale was good and effective at the common law, as between the defendants and the real owner? If not,

2nd. Whether such sale was good and effective, in view of the facts disclosed, as between the real owner of the ring and the defendants, under the provisions of what is known as the Factors' Act, Code, Art. 3, sec. 4? And,

3rd. If neither of the defendants acquired title to the ring, whether, under the facts of the case, there was such conversion thereof by the defendants, or one of them, as would entitle the plaintiff to recover?

1. It is certainly a well established principle of the common law founded, as it would seem, upon a maxim of the civil law, nemo plus juris in alium transferre potest quam ipse habet, that a sale by a person who has no right or power to sell, is not effective as against the rightful owner. Sales made in market overt were an exception to this general rule; but the old Saxon institution of market overt has never been recognized in this State, nor, as far as we are informed, in any of the United States. Browning vs. Magill, 2 H. & J., 308; Mowry vs. Walsh, 8 Cow., 238; Dane vs. Baldwin, 8 Mass., 518; Ventress vs. Smith, 10 Pet., 175. At the common law, therefore, a person in possession of goods cannot confer upon another, either by sale or pledge, any other or better title to the goods than he himself has. To this general rule there is an apparent exception in favor of bona fide purchasers or pledgees, where the party in possession making the sale or pledge has a title defeasible on account of fraud, or by reason of a condition in the contract of sale under which he holds. Hall vs. Hinks, 21 Md., 406; Donaldson vs. Farwell, 93 U. S., 631. Therefore, to make either a sale or pledge valid as against the real owner, where the sale or pledge is made by another person, it is incumbent upon the person claiming under such sale or pledge, to show that the party making it had authority from the owner. Cole vs. North-Western Bank, L. R., 10 C. P. in Ex. Ch., 354, 363; Johnson vs. Credit Lyonnais, 2 C. P. Div., 224, affirmed on appeal, 3 C. P. Div., 32. If, however, the real owner of the goods has so acted as to clothe the seller or...