Blaisdell v. Hersum & Co.

Crosby, J. This is an action to recover for the alleged conversion by the defendant of certain household goods which had been delivered to it by the plaintiff to be stored in its warehouse. The plaintiff testified that, while the goods were stored in the defendant’s warehouse, she stated to the defendant’s treasurer and general manager, one Hersum, that she would like to dispose of a sideboard so stored and asked him if he knew of any one who could sell it for her; that he referred her to one Hines who conducted a second-hand furniture and auction room; that later, she instructed Hines to obtain from the defendant certain specific articles named by her arid sell them; that afterwards, she learned' that Hines had taken all her goods which she had stored with the defendant, and had sold them. Hines testified that the plaintiff told him she wanted the furniture stored with the defendant sold; and that she did not enumerate any particular articles. Hersum testified that Hines told him the plaintiff had instructed him (Hines) to obtain all her goods stored with the defendant and sell them; and that thereupon the defendant sent all the goods to Hines. The evidence discloses that Hines was a special agent of the plaintiff, with limited authority. The defendant before delivering all the plaintiff’s goods to Hines was bound to inquire and ascertain the nature and extent of his authority. Lovett, Hart & Phipps Co. v. Sullivan, 189 Mass. 535. A. Blum Jr’s Sons v. Whipple, 194 Mass. 253, 257. The acts and declarations of Hines were plainly incompetent to prove his authority or its extent. Manning v. Carberry, 172 Mass. 432. Baldwin v. Connecticut Mutual Life Ins. Co. 182 Mass. 389. The defendant’s second, third and fourth requests in substance were that, if Hines was employed by the plaintiff to sell certain articles which she directed him to obtain from the defendant [95] but by negligence or mistake Hines informed the defendant that he was employed by the plaintiff to obtain and sell all the goods, the defendant is not liable. These requests properly could not have been given. The defendant as a bailee of the plaintiff’s property impliedly contracted to return it to her, or to some third person with her express or implied consent. Doyle v. Peerless Motor Car Co. of New England, 226 Mass. 561. Delivery of property by a bailee to a person not authorized by the owner is of itself a conversion, rendering the bailee liable without regard to the question of due care or negligence. Hall v. Boston & Worcester Railroad, 14 Allen, 439, 443. Murray v. Postal Telegraph-Cable Co. 210 Mass. 188, 195. Stevens v. Stewart-Warner Speedometer Corp. 223 Mass. 44. The well settled principle that a master is liable for the negligence of his servant committed while engaged in his master’s business, and within the scope of his employment, is not applicable to the facts in the case at bar; accordingly, Howe v. Newmarch, 12 Allen, 49, and similar cases cited and relied on by the defendant, are not authorities in favor of its contention that the rulings requested should have been given. The instructions given were correct and fully protected the rights of the defendant. Exceptions overruled.