Parker v. Lombard

Hoar, J. The only point in controversy is, whether there was any evidence of a conversion of the cotton by the defendant Lombard. When he hired the warehouse, the cotton was already stored there, in the possession of Parsons, the preceding lessee of the building. Parsons delivered it into his custody to keep on storage for Hobbs & Travis, who were not the owners, and had no title to it whatever. Lombard kept it as long as he was willing to do so, and then gave notice to Hobbs & Travis to take it away, which they did, he delivering it to them. He had no notice that the plaintiff was the owner, and that he held Parsons’s warehouse receipt for the property, until three months afterward. 1. The plaintiff alleges that these facts show a conversion of the cotton, because Lombard was negligent in ascertaining the ownership of it, and there were circumstances which should have put him upon inquiry. But we fail to perceive any evidence of negligence on his part. He had the right to suppose that Parsons knew who were the owners, and that his information from him was correct. It was proved that in more than half the cases a warehouse receipt is not taken when property is left for storage, and there was therefore nothing suspicious in the circumstance that Hobbs & Travis did not produce one. When application was made to them to take the cotton away, they said nothing to lead Lombard to suppose that it was not theirs; but, on the contrary, their answer, “ that they had forgotten about it, and would attend to it,” conveyed a strong implication that they were the owners. 2. The plaintiff contends that a delivery to the wrong person [408] is in itself a conversion by a bailee. The authorities are numer pus to sustain this doctrine ; some of them being found in the recent decisions of this court. But we think they are not appli cable to the peculiar state of facts which this case discloses “ If one man,” said' Mr. Justice Buller, “ who is intrusted with the goods of. another, put them into the hands of a third person contrary to orders, it is a conversion.” Syeds v. Hay, 4 T. R. 260. So if the bailee sell the goods, or otherwise assert and exercise acts of ownership adverse to the title of the owner, although innocently, it is a conversion. Coles v. Clark, 3 Cush. 399. But if the bailee, being intrusted with the possession merely, transfers the possession according to the directions of the person from whom he received it, without notice of any better title, and without undertaking to convey any title, this does not appear to have been held any evidence of a conversion. Thus in Strickland v. Barrett, 20 Pick. 415, Brown, who was a mortgagor in possession of certain goods, conspired with Hill to remove them out of the reach of the mortgagee, and employed the defendant Barrett to assist in removing them ; and it was held that Barrett was not liable in trover, unless he knew of the intent to deprive the plaintiff of his property. And where one received a gun as a pledge from a person in possession of it, and restored it to him before any demand by the owner, this was not found to be a conversion. Leonard v. Tidd, 3 Met. 6. See also Loring v. Mulcahy, 3 Allen, 575. In the cases cited for the plaintiff, the wrong delivery of goods by a earner or warehouseman was in violation of his contract, being without authority from the person from whom he had received them. Devereux v. Barclay, 2 B. & Ald. 702. Claflin v. Boston & Lowell Railroad Co. 7 Allen, 341. In the case at bar, Lombard received the cotton from Parsons, who was lawfully in possession of it as bailee, with directions to keep it for Hobbs & Travis, and deliver it to them. He strictly complied with his engagement to do so; and had no notice of any other claim of ownership. To deliver it according to Parsons’s order was no more unlawful, under these cir [409] cumstances, than it would have been to return it to Parsons himself. It showed no breach of his contract, nor intent to deprive the plaintiff of his property. Exceptions overruled.