Velzian v. Lewis

• Decision Date: 02 January 1888
• Citation: 15 Or. 539,16 P. 631
• Parties: VELZIAN v. LEWIS et al.
• Court: Oregon Supreme Court

16 P. 631

15 Or. 539

VELZIAN v. LEWIS et al.

Supreme Court of Oregon

January 2, 1888

Appeal from circuit court, Douglas county.

W.R Willis, for appellants.

J.W Hamikton, for respondent.

LORD C.J.

This was an action in trover for the conversion of 412 bushels of wheat. The complaint is in the usual form. On the ground that it did not state facts, etc., a demurrer was interposed which, being overruled, the defendants served, viz., Merrill and Lewis, filed separate answers denying specifically each and every material fact alleged therein. Upon issue being thus joined, a trial was had, which resulted in a verdict and judgment for the plaintiff, from which this appeal is taken. The facts out of which the controversy arises are, in substance, these: The plaintiff had contracted to sell his wheat to one W.F. Owens, to be delivered at the warehouse at Dillard station, and for which he was to receive his pay when the wheat was delivered. Dillard, who was the keeper of the warehouse, was to clean the wheat, and to store it in his warehouse for him. Owens had made an advance of $150 to the plaintiff on his wheat, for which he had given his note, but which he paid after his wheat was taken away without any authority or order from him. The defendant Merrill, who was buying wheat for the defendants Allen &amp Lewis, as their agent, went to the plaintiff to buy his wheat while he was threshing, but the plaintiff declined to sell, telling the defendant Merrill of his sale to Owens, and the advance he had received, and at the same time declined to receive when the plaintiff offered to pay the amount Owens had advanced. The plaintiff had delivered at the warehouse 412 bushels of wheat in two-bushel sacks, marked "No. 30," when Owens died. Just prior to this the defendant Merrill had bought of Owens a lot of wheat, and got an order to Dillard for it. A part of it included the wheat in controversy, as appears by the order of Owens to Dillard, and which directs the delivery of the wheat to Merrill, and to be shipped to his order. Dillard accepted the order, and by the directions of Merrill shipped the wheat to Allen & Lewis at Portland. The plaintiff never saw the order from Owens to deliver the wheat to Merrill, nor never asked Merrill or Allen & Lewis for the wheat.

The plaintiff testified that "Dillard told me his warehouse was getting full, and asked if he could clean and ship that much [412 bushels] of my wheat. I told Dillard he could clean it, but did not tell him to ship it. I did not know who got the wheat, except what others told me. I gave no order to take it." Dillard testified that "I told him [plaintiff] that I had an order from Owens to ship the wheat on Merrill's order. I told him that my warehouse was getting full of wheat, and asked him if I could clean and ship this lot of wheat. He said I could clean it, and I understood him that I could ship it. He did not object to my shipping it on Owens' order. I cleaned it and put it out of the warehouse into the railroad cars, to be delivered to Allen & Lewis at Portland." The evidence also shows that the reason the plaintiff made his contract that the money was to be paid when the wheat was delivered, was in his own words: "I had trouble last year about getting my money, and I made this arrangement so that I could get my money when the wheat was sold." Upon this state of facts, as far as relates to the wheat of the plaintiff, it is clear that Owens sold it to the defendant Merrill as the agent of the defendants Allen & Lewis without the consent of the plaintiff, and when he had no title to it, and could give no lawful or rightful order for its delivery to any one; and that Dillard exceeded his authority when he accepted such order, and by direction of the defendant Merrill put the wheat aboard of the cars, and delivered it to the defendants without the consent of the plaintiff. Nor is this disputed, or that these acts do not constitute a wrongful taking or conversion as against them.

But the contention of counsel for the defendants is that, where the purchase is made in good faith, although from one without title, and the possession is taken from one rightfully in possession, the action of the trover for a wrongful conversion is not maintainable without previous demands before suit, unless some subsequent acts of the purchaser make him guilty of a conversion. In a word, he seeks to place the transaction on the same footing as a sale by a bailee or warehouseman, and argues that, as the buyer acts in good faith, his possession is lawful, particularly where he takes possession from a warehouseman who has the lawful possession of the goods. Hence he insists there is no wrongful taking or conversion without some other subsequent act of dominion or control inconsistent with the rights of the true owner.

It is not perceived, however, how this view can aid the contention of the counsel for the defendants. At first blush, it may seem strange that one who takes possession of goods or chattels under a contract of purchase from one who had no right to sell should be treated as a wrong-doer, but the explanation of the principle lies in the common-law maxim caveat emptor, which applies to the transfer of personal property. It is the buyer's own fault if he is so negligent as not to ascertain the right of the vendor to sell, and he cannot successfully invoke his bona fides to protect himself from liability to the true owner, who can only be divested of his rights or title to his property by his own act, or by the operation of law. Every person is bound at his peril to ascertain in whom the real title to property is vested, and, however much diligence he may exert to that end, he must abide by the consequences of any mistake. Gilmore v. Newton, 9 Allen, 171; Spraight v. Hawley, 39 N.Y. 441; Hotchkiss v. Hunt, 49 Me. 213. Nothing can be plainer than that no one can sell a right when he himself has none to sell, and that every such wrongful sale, by whomsoever made, whether by thief or bailee, acts in derogation of the rights of the owner, and in hostility to his authority, and consequently can neither acquire themselves, nor confer on the purchaser any right or title of such owner.

Mere possession of another man's property affords no evidence that the person having such possession has power to sell it, and he who purchases or intermeddles with it must see to it that he is protected by the authority of one who has power to sell. Dixon v. Caldwell, 15 Ohio St. 412; Spraight v. Hawley, supra; Cooper v. Newman, 45 N.H. 339. A possession taken under a purchase from one without title, and who has himself been guilty of a conversion in disposing of the goods or chattels, is a possession unauthorized and wrongful at its inception, and which the absence of evil intent in the purchaser cannot make rightful or lawful. Such a possession is based on the assumption of a right of property, or a right of dominion over it, derived from the contract of sale; and what is this in the legal sense but a wrongful intermeddling or asportation or detention of the property of another?

At common law, a conversion is that tort which is committed by a person who deals with chattels not belonging to him in a manner which is inconsistent with the rights of the lawful owner. Rap. & L.Law.Dict. "Any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion." Cooley, Torts, 428; Ramsby v. Beezley, 11 Or. 51, 8 P. 288. It consists in the exercise of dominion and control over property inconsistent with, and in denial of the rights of, the true owner, or the party having the right of possession. Said SHEPLEY, J.: "The exercise of such a claim of right or dominion over the property as assumes that he is entitled to the possession, or to deprive the party of it, is a conversion." Fernald v. Chase, 37 Me 290. The defendants, by taking possession under their purchase, assumed an ownership and exercised a dominion over the property inconsistent with the rights of the plaintiff as the true owner. "The very act," said Lord ELLENSBOROUGH, "of taking goods from one who has no right to dispose of them, is a conversion," and held the action of trover maintainable. Hurst v. Foster, 2 Starkie, 306. And again, said the same learned judge, "the very assuming to one's self the property and right of disposing of another man's goods is a conversion; and certainly a man is guilty of a conversion who takes my property by assignment from another who has no authority to dispose of it; for what is that but assisting the other in carrying his wrongful act into effect?" McComtie v. Davies, 6 East, 538. The taking possession of personal property under a contract of purchase is an act based on the assumption of ownership, or a right of dominion over the thing converted where the vendor is without title, and although without evil intent, is a conversion for which trover lies without previous demand. The intent with which the wrongful act is done on the part of the defendant is not an essential element of the conversion. It is enough that the true owner has been deprived of his property by the unauthorized act of some person who assumes dominion or control over it. It is the effect of the act which constitutes the conversion. Edw. Bailm. § 162; Cooley, Torts, 534, 538, 688; Flanders v. Colby, 28 N.H. 34; Boyce v. Brockway, 31 N.Y. 490; Morrill v. Moulton, 40 Vt. 242. Hence the conversion may consist simply of a purchase, even by an innocent party, of goods or other personal chattels from one who has himself been guilty of a conversion in disposing of them, where the buyer takes the goods or chattels into his possession or custody. The authorities to this point are numerous and...