Westheimer v. State Loan Co.

Knowlton, O. J. The issues in this case, as stated by the judge in his charge to the jury, are very simple. They are whether the plaintiffs were the owners of the whiskey at the time of the alleged conversion, and whether the defendant converted it. The first issue includes the question whether the goods are identified as property that once belonged to the plaintiffs, and if so, whether they parted with their title before the conversion. There was testimony from one of the plaintiffs, by a deposition, that his firm shipped to one Bowen three barrels of Hornpipe whiskey and one barrel of Boston League whiskey, and that each of the barrels was marked with its proper brand, three with the name Hornpipe and one with the name Boston League. The manner and circumstances of making the shipments, which were called for by the question, were shown only by an answer that the firm notified their teamster to ship to Bowen four barrels of Hornpipe whiskey and one of Boston League whiskey. It does not appear that the witness did not have other knowledge that the shipment was made. In another answer the witness gave the value of the whiskey shipped to Bowen, referring to it by a general statement similar to the first. Bowen testified to having received four barrels of whiskey bearing the plaintiffs’ brand, marked like those referred to by the former witness. It appears that the arrangement for the receipt of this whiskey by Bowen was made by one Hanley who was employed by the plaintiffs to solicit orders for the sale of their whiskey and to make collections. There was ample evidence to warrant the jury in finding that [516] the whiskey received by Bowen came from the plaintiffs’ stock and that the plaintiffs never parted with their title to it. There was testimony from Kimball, the defendant’s treasurer, that he bought four barrels of whiskey from Hanley, which was then stored on Bowen’s premises, and which Hanley said he owned. It appeared that the defendant replevied from Bowen four barrels of whiskey branded like those described by the plaintiff in his deposition, and that this whiskey was received from the officer by the defendant, and afterwards sold and the proceeds of it received by the defendant, and that the defendant refused to return the whiskey to the plaintiffs upon demand. This was convincing evidence of a conversion. The instruction of the judge that, if the defendant in any way, either by process of law or otherwise, asserted and exercised a right to take possession of this whiskey and carry it away from the place where it was stored, that would be a conversion, was correct, as applied to the facts of this case. See Pine v. Morrison, 121 Mass. 296. There was no evidence that Hanley had any title to the whiskey shipped by the plaintiffs to Bowen. Neither his declarations nor the statements and conduct of others, founded on his declarations, were competent evidence. The testimony of the plaintiff by deposition was competent. It tended to identify the whiskey stored by Bowen. So too was the agreement of the defendant’s attorney of record as to facts to be admitted by the defendant at the trial. Lewis y. Sumner, 13 Met. 269. The attorney had a right to make the agreement, the plaintiffs acted upon it, and it does not appear that the authority was ever revoked, much less that the plaintiffs were ever notified of its revocation, or of any attempt to cancel the agreement. Exceptions overruled.