Mount v. Derick — 5 Hill & Den. 455

Majority

p. 455

Mount vs. Derick.

Headnote

The refusal of a servant to deliver goods entrusted to him by his master, on a de. mand made by a stranger, is not sufficient evidence of a conversion in an action by the latter, against the servant. Per Bronson, J.

Nor will such demand and refusal be sufficient evidence of conversion to charge the master, unless the servant refused under directions from the master Though, on demand made of the servant, he refuse to deliver because he has no authority, and his conduct be afterwards approved by the master for that reason, the approval will not render the latter chargeable with a conversion.

Error to the New-York common pleas. Derick brought replevin in the court below against Mount, Jackson and Babcock, for detaining a harness. Moúnt and Jackson pleaded, and Babcock suffered judgment by default. On the trial it appeared that Babcock ordered the harness to be made by the plaintiff, agreeing to pay for it on delivery, but that it was delivered by the plaintiff without receiving the money. The plaintiff, a few days afterwards, sent for the pay, but did not obtain it, and the harness had in the meantime passed into the hands of Mount, who kept a livery stable., The plaintiff sent one of his workmen to Mount’s stable to get the harness. Mount \vas absent, and the demand was made of the defendant Jack

p. 456

son, who was Mount’s foreman and transacted his business at the stable in his absence. Jackson answered that he would not and could not give wp the harness, for Mr. Mount was absent, and he had no orders. On cross-examination, the witness said Jackson’s answer was that Mr. Mount was not in town; that he had not left any orders to do so, and therefore hé (Jackson) could not deliver the harness,. It was proved that in point of fact Jackson bad no -authority to deliver the nronertv. After the above demand, the writ of replevin was issued and delivered to the deputy sheriff to be served. When the deputy first went to the stable* Mount was absent, and the deputy did not find the harness. When the deputy went the second time he found Mount, who said that Jackson had done right in not delivering up the property; he had no authority to do so; that he (Mount) would have refused to give it up. He said Babcock owed him a small bill, and he was justified in detaining the property. Mount went out for a few minutes, and somebody paid his bill; he then returned and delivered up the harness to the deputy sheriff. The plaintiff afterwards expressed his entire satisfaction with the conduct of Mount, and said there should be nothing further done about it.

The judge charged the jury, among other things, that if the act of the foreman (Jackson) in not delivering up the property was afterwards recognized by Mount, then it must be regarded as his own act, and the demand was sufficient to justify the action. Exception. Verdict and judgment for the plaintiff. Mount (having severed from the other defendants) now brought error on a bill of exceptions.

H. Ketchum, for the plaintiff in error.

C. De Witt, for the defendant in error.

The refusal of a servant to deliver goods |ntrusted to him by his employer, on a demand made by a stranger, is not sufficient evidence of a conversion in an action against the servant. (Mires v. Solebay, 2 Mod. 242;

p. 457

Alexander v. Southey, 5 Barn. & Ald. 247; 2 Phill. Ev. 226.) Nor is a demand of the servant sufficient to charge the master, unless the former acted under the direction of the latter in refusing to deliver the goods. (Storm v. Livingston, 6 Johns. R. 44; Pothonier v. Dawson, Holt’s N. P. Rep. 383.) The demand made of Jackson, and his refusal to deliver the property because he had no authority to do so, was neither sufficient to charge him, nor his employer Mount; and there was no other demand before suit brought.

Now what was the supposed adoption or ratification of Jackson’s refusal to deliver the property? Mount said, in substance, that Jackson had done right in not delivering up the property, because he had no authority to do so. This was saying no more than the law says, and proves nothing in favor of the action. If a man without my license or command commit a trespass for my use or benefit, subsequent assent will make the act my own, and I may be treated as a wrongdoer. (4 Inst. 317; Com. Dig. Trespass, (C1).) But if my servant properly refuse to do an act because he has no authority, and I afterwards approve of his conduct for that reason, it is no wrong, and an action cannot be based upon it. The demand of Jackson must go for nothing. As the charge upon this point may have misled the jury, there must be a new trial.

Mount said he would have refused to give up the property; Babcock owed him a small bill, and he was justified in detaining the property. But that belongs to another branch of the case, which it is not necessary to examine.

Judgment reversed.