Rogers v. Dutton
| Decision Date | 30 October 1902 |
| Citation | 182 Mass. 187,65 N.E. 56 |
| Parties | ROGERS v. DUTTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Willis E. Sibley, for plaintiff.
John S Gould, for defendant.
This is an action for the conversion of some hay. The testimony is recited at some length in the record, but it may be summed up in a few words. A man giving the name of Simmons applied to the plaintiff as the agent of the defendant, Dutton, and asked him to sell some hay. The plaintiff said that he would telephone to the defendant, but Simmons said that Dutton had no telephone and was ill. Thereupon the plaintiff agreed to sell Dutton the hay, hired a wagon from a livery stable, and had one of his own men get the hay and help load the wagon. There was nothing on the wagon or otherwise to show to whom the hay belonged. It was met by Simmons, and was put into the defendant's barn. Simmons in the mean time had been professing to sell the hay on his own account to the defendant, and after it was delivered he got the price and disappeared. When the fraud was discovered, the plaintiff said to the defendant that this was the first time that he had been swindled and he might as well swallow it. The next day he demanded the hay and the defendant refused to let him have it. The evidence being admitted to be true, the court directed a verdict for the plaintiff for $38.91, and the defendant excepted.
It is evident on these facts that there was no sale and that the plaintiff never parted with his title. Rodliff v Dallinger, 141 Mass. 1, 4 N.E. 805, 55 Am. Rep. 439. Therefore cases where by the form of the transaction the plaintiff had parted with his title and afterwards the property came to the hands of a bona fide purchaser have no application. We observe that the defendant's being a bona fide purchaser is much dwelt upon in the elaborate argument in his behalf. The phrase most commonly is put forward where there has been a formally complete sale and where therefore the title has passed. There was no complete transaction in this case, and if the defendant is entitled to prevail it must be on the ground that the plaintiff has estopped himself by his conduct to set up a legal title that unquestionably has remained in him undisturbed. But there is not a shadow of an estoppel in the case.
The only effect of the plaintiff's conduct which was manifested to the defendant was that Simmons was enabled to appear to be in possession of the hay. But it is well settled that entrusting a third person with possession is not holding him out as owner, and creates no estoppel if he undertakes to sell. The case is more than covered by the decisions. Rodliff v. Dallinger, 141 Mass. 1, 4 N.E. 805, 55 Am. Rep. 439; Bank v. Bemis, 177 Mass. 95, 58 N.E 476. See Farquharson Bros. & Co. v. King & Co. [1902] App. Cas. 325. In cases like Russell v. Telephone Co., 180 Mass. 467, 62 N.E. 751, and Scollans v. Rollins, 173 Mass. 275, 53 N.E. 863, 73 Am. St. Rep. 284; Id., 179 Mass. 346, 60 N.E. 983,--when a purchaser is referred to the owner, it is on the ground of the owner's having entrusted to another an instrument...
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Levi v. Gonzenbach
...party with the principal. 2 C.J. § 544, at page 865; Booker v. Booker, 208 Ill. 529, 70 N.E. 709, 100 Am. St. Rep. 250; Rogers v. Dutton, 182 Mass. 187, 65 N.E. 56. If revocation was intended, it would have been an easy matter for plaintiff to advise the defendant, and that was not done. No......
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...party with the principal. 2 C.J. sec. 544, at page 865; Booker v. Booker, 208 Ill. 529, 70 N.E. 709, 100 Am. St. Rep. 250; Rogers v. Dutton, 182 Mass. 187, 65 N.E. 56. If a revocation was intended, it would have been an easy matter for plaintiff to advise the defendant, and that was not don......
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