National Steamship Co. v. Sheahan

the possession of the tickets then in the hands of such agents, and, if so (2) whether the tickets so signed by the defendant were recoverable in that form of action.

On the abolition in this state of the action of detinue, the common law action of replevin was extended by statute so as to embrace within it a remedy for the wrongful detention of personal property although the taking may have been lawful. 2 B. S., 522, § 1; id., 553, § 15. And now provision for such action is made by the statute. Code Civ. Pro., chap. 14, tit. 2, art. 1. The maintenance of the action was dependent upon the right of the plaintiff to the possession of the property and the wrongful detention of it by the defendant at the time of the commencement of the action, if the defendant, without any understanding with the plaintiff to. that effect, had distributed amongst others the tickets delivered to him to sell, their possession would be deemed his for the purposes of the remedy. But the situation in the present case is somewhat different. One purpose of the agency of the defendant was to create sub-agencies for the sale of tickets in various and remote localities in the United States, and thus enlarge the patronage and business of the plaintiff’s steamships, and while the system to accomplish it was such that the sub-agents communicated directly with the defendant and made their reports and remittances to him, and the advices to the jDlaintiff were made by him. they in some sense represented the plaintiff, because they were appointed pursuant to its authority expressly vested in the defendant. It was part of the arrangement that these sub-agencies should he created through the instrumentality of the defendant, and by that means the service of selling the plaintiff’s tickets should be performed. The defendant, therefore, in appointing those persons to take and sell tickets, performed a duty imposed upon him by his contract with the plaintiff. The question here is not one of his responsibility to account for their action in the business of selling the tickets, but whether he is liable as for wrongfully detainingfrom the plaintiff tickets which, pursuant to such arrangement with the latter, he placed in their possession for sale. When the defendant was advised that his agency was revoked and was directed to so inform his agents and withdraw from them the tickets held by them, it was his duty to so notify them and request of them the return of such tickets. This he did, and many of them responded; and all the tickets returned to him prior to the commencement of the action were sent to the plaintiff. Many of these numerous sub-agents were in distant states of the Union, where it was contemplated by the parties that they would be located, and therefore not within the immediate control of the defendant. Such fact is. entitled to some consideration upon the question whether the defendant was chargeable with wrongfully detaining the tickets which remained in the possession of those agents. The situation is practically no different than would have been that produced by the creation of sub-agencies by the defendant in foreign countries, and sending to them tickets pursuant to the advice of, or understanding with, the plaintiff that the)' he sent to them there. The

inability of the defendant in such case to deliver them to the plaintiff on demand could hardly be treated as a conversion or wrongful detention to support an action in trover or replevin. These views have proceeded on the ground not only that the disposition of the tickets by the defendant was lawful, but that they were placed in the possession of the agents pursuant to his understanding with the plaintiff; and, therefore, the rule which obtains in aid of an action of this character in a case where the property is wrongfully taken by a person or lawfully taken and wrongfully transferred by him to another, is not applicable to this one. In that case his actual or continued possession at the time of its commencement is not essential to support an action against him on behalf of the party entitled to possession to recover it. Olmsted v. Hotailing, 1 Hill, 317 ; Brockway v. Burnap, 16 Barb., 309 ; Nichols v. Michael, 23 N. Y., 261 ; Knapp v. Smith, 27 id., 277 . That doctrine has no application to the present case because the defendant neither unlawfully obtained possession of the tickets or wrongfully disposed of them, and the action was not maintainable unless the defendant in judgment of law had the possession of them at the time of its commencement. In view of what has already been said such was not his relation to the tickets held by the sub-agents. They were not merely his servants; and while he could terminate their agency and deny to them the right to fill out and sell the tickets held by them, the possession which they were permitted by the plaiiatiff to take was theirs while they retained the tickets. The failure of the defendant on demand to obtain and return them to the plaintiff was not, therefore, a wrongful detention by him of such blank tickets.

The evidence of the defendant, although somewhat indefinite on the'subject, tended to account for nearly all the tickets delivered to him by the plaintiff, and to show that very few only were outstanding at the time of the commencement of the action, except 550, which were returned by those agents to him after the action was commenced, and those the referee found the defendant mutilated and destroyed by taking off his name. For the reasons already given, the defendant was not, at the time of the commencement of the action, chargeable with wrongful detention of those tickets, and therefore, as to them, the plaintiff was not entitled to recover.

The plaintiff not having by the complaint alleged or demanded damages for detention of the property, moved at the opening of the trial for leave to “ amend the complaint so as to embrace a claim for $500 damages,” and on objection taken the referee denied the motion on the ground that he had no power to allow the amendment, as its effect would be to introduce a new cause of action. If the purpose of the proposed amendment was merely to allege damages for the detention of the property sought to be recovered, it would not constitute a new or independent cause of action. But -the right to recover such damages was dependent upon the recovery for the return of the property or some of it, mentioned in the complaint, and as the referee determined that the plaintiff was not entitled to recover in that respect, the amend

ment, if allowed, would have been unimportant. Any amendment of the complaint to recover money other than as damages founded upon recovery of the property would have constituted a new cause of action, and not within the power given by statute to the referee to grant. Code, § 723.

In that view such was the character of the claim, here suggested by the plaintiff’s counsel, arising out of the sale made by sub-agents of two tickets after the commencement, of the action, that it would not have been available as damages in the cause of action alleged, but its recovery, if allowed, would be founded upon a new cause of action. There was, therefore, no error to the prejudice of the plaintiff in denying the motion to amend, or in the refusal of the referee to exercise his discretion in that respect. None of the plaintiff’s exceptions seem to have been well taken.

The judgment should be affirmed.

All concur, except Haight, J., absent.