Majority
Headnote
An agent to whom apiano is entrusted “ to rent or sell,” and who under this authority rents it to a person who never returns it, is not liable to the owner of the piano as for conversion. The appropriate remedy is an action for breach of duty or negligence in letting the piano to an improper person.The action is brought to recover for the conversion of a piano, belonging to the plaintiff.
The defendant, under this authority, rented the piano to John Chadwick, under circumstances showing-negligence upon the part of the defendant, sufficient to hold him for the value of the piano, if the action had been brought in the appropriate form. But the defendant was not guilty,:of conversion.
The letting to Chadwick did not constitute a conversion, and the failure to return the piano is not evidence of conversion in the face of the testimony that the failure to return the piano was owing to the fact that Chadwick had not "brought it back, and that the defendant did not know where to find him. The evidence*in regard to the letting, exhibits cer-tain suspicious circumstances, but it is uncontradicted, and must be accepted as true.
Negligence consists in some breach of duty, owing by one person to another, and does not furnish ground for holding an agent liable in conversion (Moore v. McKibbin, 33 Barb. 246 ; 16 N. Y. 250 ; 40 Barb. 315 ). As the conversion charged has not been proved, it follows that the defendant is entitled to judgment.
Ho appeal was taken.
Cases cited
- Moore v. McKibbin 33 Barb. 246 p. 448
- Walter v. Bennett 16 N. Y. 250 p. 448
- Harris v. Schultz 40 Barb. 315 p. 448