Thomson v. Sixpenny Savings Bank — 18 N.Y. Super. Ct. 293

Majority

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Charles Thomson, Plaintiff and Respondent, v. The Sixpenny Savings Bank, of the City of New York, Defendants and Appellants.

Headnote

A corporation was created for the purpose of receiving on deposit sums offered therefor by mariners, tradesmen, clerks, mechanics, laborers, minors; servants and others, and investing the same in State or city stocks or bonds, or loaning the same on such securities, or on bond and mortgage on real estate, for the use and advantage of the depositors; the business of the corporation to be managed by a Board of Trustees, who were authorized to appoint a President and two Vice-Presidents; and power was given to hold only such real estate as was necessary for the transaction of its business, and such as should be purchased at sales upon judgments or decrees obtained for money so loaned, and the corporation was prohibited dealing in or buying or selling any goods, wares or merchandise. The by-laws provided for monthly meetings of the Trustees, and conferred the superintendence and management upon seven Trustees during the intérval. Upon the foreclosure of a mortgage, held by such corporation, upon a manufactory, and a sale of the mortgaged premises, the corporation became the purchaser. Thereafter, and after the corporation had taken possession, one of the Vice-Presidents, without the authority of the Trustees, forbade the removal of certain tools and machinery therefrom by the purchaser thereof under a sale by virtue of a mortgage upon such tools and machinery, alleging that, as to any of the articles which were fixtures, they were the property of the corporation, and declining to specify which he claimed to be fixtures, until consultation could be had for the purpose of ascertaining which were in law fixtures passing to the corporation under the first named foreclosure sale.

1. Held: That if the act of the Vice-President was such as to amount to a tortious conversion of the tools, the corporation was not liable for his acts.

2. Proof that he acted by the authority and sanction of the President would not be sufficient to subject the corporation to such liability.

3. A subsequent demand of the property being made of the Vice-President at the place of his private business, he replied that he would lay the matter before the Trustees of the corporation: Held, that this did not render the corporation liable as fór a refusal to permit the plaintiff to take his property.

A Whether, if the action had been against such Vice-President as an individual, his statement at the time he prohibited the removal, that he only claimed to detain such tools as were fixtures, and as such belonged to the

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corporation, would have justified him in forbidding the removal of any tools until the question which were fixtures was determined, or would have been a defense ? Qucere.

5. And whether the subsequent consent of the plaintiff to refer the question, which were fixtures, to the counsel for the respective parties, and to abide by their decision, was not a waiver of any such previous wrong, if any ? Qucere.

6. How far a qualified refusal to deliver on demand is to be taken as evidence of conversion considered.

(Before Woodruff, Pierrepont and Moncrief, J. J.)

Heard, February 18;

decided, October 29, 1859.

Appeal from a judgment rendered on a verdict for the plaintiff, for $4,801.80 damages and costs.

The complaint alleged the incorporation of the defendants, the plaintiff’s ownership of four drilling machines, eight engine lathes, three planing machines, one steam engine, and other machines and tools of the value of $8,000; that the defendants, on, &c., became possessed thereof, and have refused to deliver the same to the plaintiff, but on the contrary have converted and disposed thereof to their own use; and demanded damages for such wrongful conversion and disposition of the property.

The answer denied all these allegations, and stated that the articles were and are in a certain building specified; that the defendants never have made, and do not make, any claim to the said articles; and the defendants in the answer offered to deliver the same to the plaintiff.

On the trial the proofs showed that the defendants, upon the foreclosure of a mortgage, given by Sloan & Leggett, held, by them upon the building or manufactory in which the property was in use, became the purchasers of the building; that there was then outstanding a mortgage given by the same parties (Sloan & Leggett) upon the chattels now in question; that such last named mortgage was foreclosed by a sale of the chattels at auction on the 80th January, 1857, by the mortgagee, in pursuance of a power contained therein, and at such sale the plaintiff purchased the articles mentioned in the complaint.

At the sale of the mortgaged chattels, William Miles, the Vice-President of the defendants, was present. The sale took place on

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the premises. He was there professing to act for the defendants as owners of the manufactory. When the auctioneer was about to sell the mortgaged chattels, Mr. Miles, according to the testimony of some of the witnesses, forbade the sale; according to some of the testimony, he forbade the sale of any of the articles which were fixtures, and according to other testimony he forbade the sale of anything belonging to the defendants; but being called on to state which articles he claimed to be fixtures, or to belong to the defendants, he declined doing so at that time. The sale proceeded, and the plaintiff became the purchaser of the articles in question, and Miles instructed the person in charge of the building not to allow the removal of any of the articles until it was ascertained which belonged to the defendants.

There was evidence that, immediately after the sale, the plaintiff and Miles agreed to refer the question which, if any, of the articles were fixtures belonging to the defendants to their respective attorneys, who should meet at the building two days thereafter, and to abide by their decision or opinion. Several days elapsed, and the attorneys not having so met, the plaintiff sent a messenger on the 9th of February to the store (or place of private business) of the said Miles, and made a written demand of the chattels, to which he replied that he would lay it before the Board of Trustees of the Bank. A like demand was also made of the person whom Miles had instructed to detain the articles, and his answer was, that he was instructed not to deliver the articles. The President being called upon, referred the plaintiff to the Vice-President.

There was evidence tending to show that, after this, and before suit brought, the attorney for the defendants stated to the plaintiff’s attorney, at an interview between them, that the defendants had no objection to his taking the articles. After suit brought, the defendants’ attorney, in writing, declared to the plaintiff’s attorney that the defendants made no claim to the articles mentioned in the complaint, and did not and had not refused to deliver them.

There was some conflict of testimony; and the opinion of the Court refers to some of the evidence, which it is not necessary here to repeat.

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The opinion also states the provisions of the defendants’ charter defining the object of the incorporation. It further declared the purpose to be, the investment of the moneys deposited in State or city stocks or bonds, or loaning them on such securities, or on bond and mortgage, for the benefit of the depositors, and authorized the corporation to purchase, on foreclosure or on sales on judgments, the real estate sold.

The 16th of their by-laws provided as follows:

“A monthly Attending Committee of seven Trustees shall be appointed, whose duty shall be to attend at the Bank during the month, .when necessary, and to have the general superintendence and management of it during the recess of the Board. They shall keep minutes of their proceedings, and lay them before the Board of Trustees at each monthly meeting, noting particularly the amount deposited and drawn out.”

There was no evidence defining the powers of the President; and the proof in relation to the Vice-President only showed that he was to act in the absence of the President.

The requests of the defendants’ counsel for special instructions to the jury, and the charge as given, are sufficiently stated in the opinion of the Court.

The jury rendered a verdict for the plaintiff for $4,623 damages; and lor that sum, and for $178.80 costs, judgment was-.entered, from which the defendants appealed.

Charles T. Cromwell, for defendants, (appellants.) .

I. The defendant has no corporate power other than express trust powers, which are confined (§ 6 of act) to receiving deposits from laborers, minors, mechanics and others, of five cents and over, and investing the funds deposited. It cannot be forced to take personal property, which it is expressly prohibited from taking, or from selling after it is taken, nor can it, therefore, be made liable in damages for a tort, because the enforcements of such liabilities would necessarily work a breach of trust, to the injury of its cestui que trusts, for it would be directly taking from those laborers, minors, and mechanics, the amount of this judgment, and forcing upon it an investment of that amount in old rusty tools; and such liability would force on the corporation a direct violation of its act of incorporation, which positively pro

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Mbits it from “ directly or indirectly dealing or trading in, buying or selling any goods, wares or merchandise.” (Laws of 1853, 670; N. Y. Firemen's Ins. Co. v. Ely, 2 Cow., 678 ; McCullough v. Moss, 5 Denio, 567 , overruling 5 Hill, 137 ; 2 Denio, 110 .)

II. The trespass complained of was not authorized by the defendant. No express authority was shown, nor were the acts of Miles within the scope, actual or apparent, of Ms agency as an officer of the Bank. His duties, by the charter and its by-laws, are restricted simply to preside at the Board in the absence of the President. The defendant, therefore, cannot be made liable for Miles’ acts, especially if they were tortious. (Wright v. Wilcox, 19 Wend., 345 ; National Bank v. Norton, 1 Hill, 572 ; Vanderbilt v. The Richmond Turnpike Co., 2 Comst., 479, and cases cited; Mechanics' Bank v. N. Y. & N. H. R. R. Co., 3 Kern., 633; Weed v. Panama R. R., 17 N. Y., 362 ; Philadelphia R. R. v. Derby, 14 How. U. S., 468; Story on Bailments, § 400, et seq.; 5 Denio, 567 ; 2 id., 110.)

III. The third proposition of the charge to which the plaintiff excepted was erroneous, and calculated to mislead the >7-

1. There was not any evidence tending to prove that the Trustees had any knowledge of, or that they in any manner sanctioned, the acts of Miles complained of.

2. The President had no power, by virtue of his office, to sanction or authorize such acts, and no express authority was shown; on the contrary, the existence of such a power was negatived, and the plaintiff was expressly notified of this absence of authority. (See 16th by-law, also act of incorporation.)

3. If the President was vested with such a power he could not delegate it to another. (Paley’s Agency, by Dunlap, 175, and n. A; 2 Kent’s Com., 613; Lyon v. Jerome, per Verplanck, Sen., 26 Wend., 485 ; Com. Bank v. Norton, 1 Hill, 501 .)

4. The President did not, in fact, assume to confer any such power.

IV. The Court also erred in refusing to charge as requested, that the proof was insufficient to make out a conversion, and in its instructions to the jury on these points.

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1. As to the occurrence at the sale. The articles were on the defendants’ premises, had been there, and used there since its erection, were there at the foreclosure sale through which defendants acquired title to the premises. The plaintiff had no legal right to enter defendants’ premises to take them away, or to require any action on the part of the defendants to put him in possession of them. (Wilde v. Waters, 32 Law and. Eq. R., 422; Colgrave v. Dias Santos, 2 B. & C., 76; Mount v. Derick, 5 Hill, 455 , and cases cited.)

2. Mr. Miles asserted no title in the defendants, but in good faith merely requested time to ascertain to whom they belonged. The articles were part of them in the nature of fixtures, and had been used in and with the building ever since its erection. There was every ground to doubt-whether they belonged to the assignees, to plaintiff, or to defendants, and which articles belonged to either. The plaintiff was a stranger, and had shown no right to the goods. (Cases supra, and Beckley v. Howard, 3 Brev. S. C., 94; Parkinson v. Simmons, 2 McMullen S. C., 188; Solomons v. Dawes, 1 Esp., 83; Wilbraham v. Snow, 2 Saund., 47, d. e. f, and cases cited inf.)

3. The plaintiff consented to give time, and thus waived all right founded upon what had previously occurred.

4. The right of the plaintiff thus rested solely on the alleged demand and refusal.

5. As to this, the ruling of the Court was to this effect:

(a.) That Miles’ answer in law was a refusal, thus taking from the jury the consideration of the evidence whether it amounted to a conversion or not.

(b.) And that if the jury believed a demand had in fact been made, a conversion had been made out.

6. This was manifestly erroneous.

(a.) It submitted nothing to the jury. It left nothing for the jury to determine.

(5.) Miles’ answer was simply a declaration of his want of authority to refuse. ( 5 Hill, 204 ,406, and others, supra; Green v. Dunn, 3 Camp., 215; Isaac v. Clark, 2 Bols., 312; Severin v. Keppell, 4 Esp., 156; Foulds v. Willoughby, 8 Mee. & W., 440; Hayward v. Seaward, 1 Moore & Scott, 459; Watt v. Potter, 2 Mason, 80; Yale v. Saunders, 16 Vt., 243 ; Anon., 2 Show, 161;

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Alexander v. Southey, 5 Barn. & Ald., 247; Bull, N. P., 446; 2 Denio, 643 ; 10 R., 56 ; Mires v. Solebay, 2 Mod., 244; Pothonier v. Dawson, 1 Holt C., 383.

(c.) A refusal to deliver a chattel which is on the defendants’ premises, unaccompanied by a positive denial of the plaintiff’s right to it, or an assertion of dominion over it by the defendant, is not evidence of a conversion. (32 Eng.. L. and Eq., supra; 1 Esp., 83; 2 Mason, 77-81; 2 Denio, 643 , and cases, supra.)

A fortiori, it is not, in the language of the charge, conclusive evidence.

Y. The demand and refusal did not prove a conversion, for other reasons:

1. It was not made at the proper place. It should have been made at the Bank, and of the committee in charge there.

2. The articles in question were not in the possession of the defendants when the demand was made.

3. A sufficient excuse was shown for not complying with it.

YI. The offer to deliver the goods before the commencement of the action was a bar to a recovery by the plaintiff. (1 M. & S., 459, and other cases, supra.)

YII. The question of conversion is one eminently for the jury, and it was error not to have submitted the question, whether the testimony amounted to a conversion or not, to the jury. The conversion was adjudged by the Court before the submission to the jury, and nothing was left for them to find but the value of the tools. (Watt v. Potter, 2 Mass., 80 , and others, supra.)

YIII. A qualified refusal is no evidence of conversion. The refusal here, if what took place amounted to that, which we deny, was qualified, and therefore was no conversion. (Green v. Dunn, 3 Camp., 215, and others, supra)

IX. There is no evidence showing-any authority in Nicholls to make a demand, and such authority cannot be inferred, but must be proved. (Right v. Cuthell, 5 East, 498; Gunton v. Nurse, 2 Brod. & Bing., 447.)

Nor is it any where shown that Nicholls communicated to the plaintiff what occurred between him and Miles upon the delivery

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of the plaintiff’s letter. Eo pretense of ratification by plaintiff of Hicholls’ acts can, therefore, be presumed.

X. If the property of plaintiff was in the custody or under the control of the defendant, a corporation, as was certainly plaintiff’s view of the case, from the direction of.the notice, trover will not lie, unless it be affirmatively shown that Miles had authority to respond to the demand, by.making or directing a delivery of the goods. This is not only not proved, but the converse is clearly shown. The corporation could only act by its Board of Managers, and Miles gave the only response that he could, viz.: that he would invoke the authority of the Board; and it is nowhere shown that such authority had been invoked, or that the Board had ever been convened, or had notice of the alleged demand. Time should have been allowed for the Board to refuse, before it could be said the defendants refused. Hill v. Covell, (1 Comst., 522,) settles that a conversion must be tortious, and that a compliance with a demand must be possible. It was not possible for Miles to comply.

XI. The question of title, &c., had been mutually submitted to the arbitrament of the .counsel of the respective parties, and until their determination of the matter in controversy the action was premature, and what occurred at Livingston’s office may be-considered as an award. (Hays v. Hays, 28 Wend., 363 .)

XII. The proceedings on the part of plaintiff and his attorney show a predetermination and a scheme to impose an action on the defendants, and to coerce them into the-position of purchasers of the old rubbish for which the suit is brought.

XIII. There being no questions raised as to the answer on the trial, none can be .now raised. (Belknap v. Sealey, 14 N. Y. R., 143.)

XIV. There should Ijave been a nonsuit, as requested.

XV. The Court erred in refusing to charge as requested, and in charging as it did.

John S. Parsons, for plaintiff, (respondent.

I. An action of trover will lie against a corporation, and this, though the conversion be of property, to deal in which is not the business of the corporation. (Yarborough v. The Bank of Eng

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land, 16 East R., 6; Beach v. The Fulton Bank, 7 Cow. R., 485; trover for flour and lard; The Bank of Columbia v. Patterson, Admr., 7 Cranch, 299 ; Foster v. The Essex Bank, 17 Mass., 503 .)

II. The plaintiff, before resting his case, offered evidence from which the jury might properly infer that the defendants authorized the act of Mr. Miles in refusing to permit the plaintiff to remove his goods at the time of the sale, and in. refusing the written demand made upon him; the act of Mr. Purdy, the President of the Bank, in the refusal made by him ; and also authorized the act of Mr. Leggett in refusing the demand made upon him. Either of those acts amounted to a conversion, and the motion to dismiss the plaintiff’s complaint was therefore properly denied.

1. The defendants had, on January 15, 1857, purchased the building in which was the plaintiff’s property, and they owned that building at all the times mentioned. They took the position that the plaintiff’s property was in the nature of fixtures, and belonged to the realty. The Bank, therefore, intended to have the benefit of the property, and to their use was it converted. They themselves have offered some testimony tending to show its actual use by them, or their assumption of beneficial ownership of it through the person in charge for them of the building.

2. The property was in the possession of the defendants. The defendants could only act in reference to it by its agents. The building, which did belong to the defendants, was so used as to deprive the plaintiff of his property. The plaintiff could only make a demand on the defendants by a demand made on the defendants’ agents. He made his demand upon the President, who expressly stated that “the Bank” (the defendants) claimed the property, and himself refused to permit a delivery of it— referring the plaintiff to Mr. Miles, the Vice-President; upon Mr. Miles, who refused, and who, by making an appointment between the attorneys of the parties to determine the ownership of the property in question, as between the Bank and the plaintiff, proved that the Bank claimed the property as its own, and upon the person in charge of the building, who refused under instructions, as the defendants proved by .his own testimony, from

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Mr. Miles and Mr. Cromwell, a Trustee, and the attorney of the Bank, if not from the Trustees themselves.

. 3. The refusal by Mr. Miles and Mr. Leggett to the written demand was 'made after numerous interviews with, and 'on advice from Mr. Cromwell, the attorney of the Bank, and the defendants’ counsel in this very action, and Mr. Purdy, the President of the Bank.

4. The plaintiff was not bound to show any express authority from the Bank to its agents to convert his property. Specific authority to commit a tort is an absurdity. The building and its contents were in the charge of Samuel Leggett, appointed by the Bank to take charge of them. His acts in respect to such property were the acts of the Bank. But he acted on direct authority from the executive officers of the Bank.

5. Mr. Miles was specially authorized to act in respect to this property. Mr. Purdy, the President of the Bank, was also an assignee of Sloan & Leggett; as such represented an interest possibly conflicting with that of the Bank, and therefore refused to act in the premises, authorizing Mr. Miles to act in his stead.

. 6. The sale took place on January 30,1857. On the following morning Mr. Miles saw and advised in the matter with Mr. Cromwell. He saw and advised several times with Mr. Purdy, the President of theBank, before the written demand was made. Mr. Vandewater, one of the Trustees, by the request of the President, was present at, had notice of, and tacitly sanctioned Mr. Miles’ acts at the sale. On the first Monday in February, 1857, there was a meeting of the Trustees. Subsequently, Mr. Cromwell, the regular attorney of the Bank, had the matter of the plaintiff’s claim in charge. Mr. Miles-says that he acted to protect the interests of the Bank. The plaintiff was urgent for.an immediate answer, and delayed two weeks before insisting upon the conversion. Surely, from all these circumstances, there was some evidence to go to the jury.

III. The Court properly refused to charge the first two propositions of the defendants’ counsel. It was properly left to the jury to say whether Mr. Miles was empowered to commit the trover, and whether the general authority to manage the affairs of the Bank in the absence of the President, embraced such power.. The question of authority is a question of fact.

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IV. The defendants produced in evidence their by-laws. The duties of the officers were neither defined nor restricted therein. The President, therefore, in the intervals between the meetings of the Trustees, as the chief executive officer of the defendants, and in his absence, (or, what is equivalent, inability, neglect or refusal to act,) the Vice-President had general charge of their affairs. The defendants were the owners of the building in which was the plaintiff’s property; the disposition of that property was an incident to such ownership, and the President or Vice-President, therefore, were the properly constituted agents of the defendants in respect thereto. The Court, therefore, properly left it for the jury to say whether Miles was acting with the authority and sanction of the President or of the Trustees, and charged that if he was, his conduct at the sale amounted to a conversion. There was no conflict of evidence as to his acts. His own testimony shows that he directed Leggett, after the demand made on him, to prevent the removal of the plaintiff’s property by force.

V. The owner of property is entitled to absolute and entire possession and control of such property at all times. Whoever usurps that control, does so at his peril; and it is no defense that he acted in good faith, honestly questioning the ownership of such owner. The jury have found that Mr. Miles’ acts were the acts of the Bank. He was therefore required to give an immediate answer when the demand was made upon him, both on January 30th, at the sale, and on February 9th, when the written demand was served. He refused the demand, and Mr. Leggett, on his instructions, prevented the removal by the plaintiff of his property. This perfected the conversion, and the Court therefore properly refused to charge the requests, and did charge as excepted to.

VT. There was no contradictory evidence as to the alleged offer of February 12, 1857. By the defendants’ own testimony, that offer amounted simply to this: That a chance meeting between the plaintiff’s and defendants’ attorneys on other business, after the conversion was perfect and the preparation of the complaint, the defendants’ attorney said to the plaintiff’s attorney, (no authority being shown in him to act on any offer that might be made,) that he might take the things that were loose; some

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of the things being spiked, secured, and some loose; none of the tools being designated, and the offer by its terms only capable of embracing an indefinite portion of the property in question.

Snch .offer could in no way affect the rights of the plaintiff, and the Court properly refused to charge that it was a bar to the plaintiff’s action, and the charge in that respect is correct. The judgment should be affirmed, with costs.

The Sixpenny Savings Bank was incorporated by an act of the Legislature passed June 4th, 1853. (Laws of 1853, p. 670.) The Trustees named in the act and their successors were created a body corporate with perpetual succession, “ by the' name of The Sixpenny Savings Bank of the Empire City.” The business of the corporation was confined to “receiving deposits from mariners, tradesmen, clerks, mechanics, laborers, minors, servants and others, and investing the same,” in the mode prescribed. (§ 6 of act.)

By section 2 it is provided that “ the said corporation shall not, directly or indirectly, deal or trade in buying or selling any goods, wares or commodities whatever, except in cases where it is authorized to do so by the terms of this act," &c.

Section 4 provides that “ the business of the said corporation shall be managed and directed by the said Board of Trustees, who shall elect from their number a President, two Vice-Presi-. dents, and such other officers as they may see fit; eight of said Trustees, of whom the President and one of the Vice-Presidents shall be one, shall form a quorum for the transaction of business, and the affirmative vote of at least seven members of the Board shall be requisite for the making of any order for investment,” &c.

By section 7 the Board of Trustees are empowered to pass bylaws for the general management of the affairs of the corporation.

An examination of the charter and by-laws of the defendants shows that the corporation had no authority whatever to engage in any manner in the purchase and sale of goods, and the case does not disclose any practice or act inconsistent with the duties and restrictions imposed by law upon the defendants. They are charged with the conversion of certain machines and tools to

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their own use, and a judgment of $4,801.80 has been obtained against them for such conversion.

It does not appear that the defendants have ever used or sold the property claimed to have been by them converted, or that they have ever derived any advantage whatever therefrom, or that the Trustees ever had knowledge of, or in any wise sanctioned the acts of which the plaintiff complains.

The acts complained of are those of Mr. Miles, the Vice-President of the Bank. The substance of all he did before the sale was to forbid the sale of fixtures belonging to the realty or of anything belonging to the defendants. “After the sale ” Jonathan Purdy, a builder, who was present at the sale, says, “ the plaintiff and Miles were talking about the delivery of the articles sold; Miles said he did not want anything but what were fixtures, and until it was ascertained what did belong to the Bank he did not want anything removed. Thomson asked how long it would take to ascertain that; Miles replied that as soon as he could see the attorney for the Bank, and ascertain what belonged to the Bank, he would make no further objection'; Miles proposed that their attorneys should meet together. Thomson assented and agreed that the two attorneys should meet.”

• When the'formal written demand was made upon Mr. Miles at his counting-house in Gold street, “ he said he would lay it before the Board of Trustees of the Bank,” and said “he could not at present give an answer.”

The President declined to have anything to do with the matter, but referred the plaintiff to Mr. Miles.

After the formal demand and before the commencement of this suit the attorneys of the respective parties met, and the defendants’ attorney asked the plaintiff’s attorney why he did not take the articles, stating that the Bank had no objections to his taking them, to which the plaintiff’s attorney replied that he should rely upon the demand made, and that Thomson wanted to get the value'of the tools.

Soon after the commencement of this action the attorney of the Bank addressed a note to the plaintiffs attorney, referring to this affair, above mentioned, and asking him to take the articles and discontinue this suit, which proposition the plaintiff did not accept.

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At the close of the testimony on both sides, the counsel for the defendants requested the Court to charge the jury, 1. “ That the general authority given to Mr. Miles to manage the business, of the Bank in the absence of the President, did not empower him to commit the trover and conversion complained of.”

■ 2.' “That proof must be given that Miles had specific authority to do the acts complained of, and that in the absence of such proof the presumption of law is that no such authority had been conferred on him.”

■ 3. “ That the proof was insufficient to make; out a conversion.”

4. ' “That if Mr. Miles did not-intend to assert a title to the goods in the Bank, ‘but merely intended to postpone answering the.demand until -he should have received instructions from the Trustees or ascertained the rights of the parties, and he acted in good faith in the matter, the defendants ‘are not liable.”

5. “ That the offer made by the defendants’ attorney on the 12th of February, was a bar to a recovery here.”

' The Court refused so to charge as to each request, and the defendants’ counsel excepted.

- The Court-charged the jury as follows:

“The defendants became owners of the building in which the articles in question were, on the 15th January, 1857; the articles were in the building at the time; the defendants were therefore lawfully in possession of the articles; the articles were sold under foreclosure of a chattel mortgage, on 30th January; the articles were at the time in the building; the plaintiff was the purchaser; he became entitled to have possession of the articles; to make the- subsequent possession of the. defendants tortious, it' was necessary that a demand of possession should- be made of the defendants, and that defendants should refuse to comply with the demand, or that defendants should undertake to exercise dominion over them in exclusion and" in defiance of" plaintiff’s title: evidence of this fact, the property being in the actual possession of the defendants, would be evidence of a conversion of the articles, which would be conclusive until the contrary was proved, as by the pleadings the defendants disclaim all title in the goods themselves. The principal question turns on the fact" Of demand and refusal, or assertion of adverse control over the property; to constitute a proper demand, it must have been made

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by a person entitled to make it, and of the party having the possession and control of the property, and to make out the ease of a conversion, the refusal must be by the party having the possession or control, or legally bound to make the delivery, or by a person authorized by such party; if you shall be satisfied on the evidence that Miles was acting with the knowledge and sanction of the Trustees or by authority and sanction of the President, it is enough to make his acts in the premises binding on the defendants; you will then consider the evidence respecting the demand and refusal, and the conduct of the defendants, in respect to the property. Miles, at the sale, forbade the sale of property in which defendants had any right, but did' not point out to auctioneer that property; he then told Leggett not to deliver any articles purchased at the sale, if parties who had purchased at the sale should call to take them away; his conduct, if Miles was acting with the knowledge and authority of the Trustees or President, would amount to a conversion of the property.

“ But if you shall be of opinion under the evidence that the parties shortly after agreed that their rights should be referred to the lawyers of the respective parties, this, though the first meeting fell through, would' be a waiver of this conduct of Miles as a tortious act, and the case- would then turn on the question of demand and refusal- But if such was not the character of that arrangement it would have no such effect.

“The plaintiff contends that it was a mere agreement that plaintiff should suspend the assertion of his rights until Miles could consult his counsel. The plaintiff was not bound to wait an unreasonable time, and from 30th January to 12th February was an unreasonable time.

“ Then as to the demand and refusal.

“The demand was in writing served on Miles; if Miles acted in the transaction with the sanction or assent of the Board of Trustees, he had authority to receive the demand and to refuse.

“ Upon receiving the demand he was bound to deliver the property, or to refuse to deliver. After all that had taken place it was not sufficient for Miles to say he would lay the matter before the Board of Trustees.

“ The defendant's contend that the subsequent offer by defendants’ attorney, before suit brought, is a bar to this action. This

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is not so. If that offer was tantamount to an absolute offer to deliver possession of the property, and plaintiff under it had gone and taken possession of the property, this, while it would not take away the right of action, might be considered on the question of damages, and go in diminution of them. But the plaintiff did not act on it, nor is the evidence under it very clear that he could have done so. Kor if he could was he bound to do so. In one sense only could this offer be material. If you shall be of opinion that both agreed that the demand by plaintiff should be held in suspense until Cromwell and Parsons had met and-determined whether the Bank was entitled to any of the articles, and that the interview at which this offer was made was an interview between them for that purpose or that the offer ■was the result of their deliberations, then the offer, if full and ■complete, to surrender the possession of the whole, would be a bar; but the evidence will not justify such a construction.' A meeting was appointed shortly after the sale. Plaintiff’s attorney kept the appointment. Defendants’ did not. Plaintiff had, some three days before the interview in question, served a written demand. The meeting at which the' offer was made was on other matters, and the subject was introduced as the parties were leaving the room.”

Thereupon the defendants’ counsel duly excepted to each of the following propositions contained in the charge, namely:

• 1. That a demand and refusal are conclusive evidence of a conversion, until the contrary is proved.

2. That defendant being owner of the building, it was in possession of the articles in question.

3. That if the jury should he satisfied, on the evidence, that Miles was acting with the knowledge and sanction of the Trustees, or by authority and sanction of the President, it is enough to make his acts binding on the defendant.

4. That the conduct of Miles at the sale, if he was acting with the knowledge and authority of the Trustees or President, would ¿mount to a conversion of the property.

5. That from the 30th January to 12th February was an unreasonable time.

6. That if Miles acted in the transaction with the sanction or .'assent of the Board of Trustees, he had authority to receive the

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demand and to refuse, and that it was not sufficient for him to say that he would lay the matter before the Board of Trustees.

7. To the proposition in respect to the offer of 12th February.

8. To the proposition that the evidence will not justify such a construction as to make the offer on the 12th of February a bar.

9. That Miles’ answer to the demand was a refusal.

Where goods have been converted wrongfully for the benefit of a corporation, and they adopt the wrong by taking the avails of such conversion, the corporation is liable; and before the Code, an action of trover would lie, and now an action for the conversion of personal property in a like case may be maintained. (Yarborough v. The Bank of England, 16 East, 6; Beach v. The Fulton Bank, 7 Cow., 484 .)

But in the case before us it is difficult to see how there has been any conversion of the plaintiff’s property by the defendants.

The trespass complained of was not authorized by the Bank, nor did they afterwards sanction it or receive the avails of it, nor were the acts charged as having been done by Miles within the scope of his real or apparent authority as an officer of the corporation. If the Vice-President of a Bank commits a trespass quite outside of his official duties, and not within the real or apparent scope of his agency, without authority from, or subsequent ratification by, the Bank, he does not thereby render the corporation liable for his tortious acts. (Vanderbilt v. The Richmond Turnpike Co., 2 Comst., 479; Mechanics' Bank v. N. Y. & N. H. R. R. Co., 3 Kern., 633; Weed v. Panama R. R. Co., 17 N. Y. R., 362; Wright v. Wilcox, 19 Wend., 345 .)

The Judge charged the jury, “that if Miles was acting with the knowledge and sanction of the Trustees, or by authority and sanction of the President, it is enough to make his acts in the premises binding on the defendants; and that his conduct, if Miles was acting with the knowledge and authority of the Trustees or President, would amount to a conversion of the property.”

To this part of the charge of the learned Judge we think the exception was well taken. The President could no more confer authority upon the Vice-President to do the acts-complained of, than the Vice-President could confer the same authority upon the President; no such authority resided in either, and neither could

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by their wrongful acts bind the Bank under the circumstances of this case.

The Court further charged that, “ upon receiving the demand he (Miles) was bound to deliver the property or to refuse to deliver. After all that had taken place, it was not sufficient for Miles to say he would lay the matter before the Board of Trustees.” To this there was an exception. •

If Miles had no authority from the Trustees to act in the matter, he could not bind the Bank by refusing to act until-authorized by the Board of Trustees; and we are inclined to think that this part of the charge was .erroneous, and that it might have misled the jury.

It is abundantly settled that a qualified refusal like this does not amount to a conversion of the property, and that the question of conversion is one of fact to be determined by the jul7-

In the case of Green v. Dunn, (3 Camp., 215,) Lord EllenboROUGH held that a qualified refusal was not evidence of conversion.

And in Watt v. Potter, (2 Mason, 80,) Judge Story, delivering the opinion of the Court, says:

. “ The first question is whether there has been a conversion in this case. This is a question of fact to-be judged of by the jury under all the circumstances. A demand and refusal to deliver is not in itself a conversion; but it is evidence from which a jury may presume a conversion.”

The case of Alexander v. Southey, (5 Barn. & Ald., 247,) was an' action of trover for printing types and other goods, and was tiled before Justice Best; it appeared that the defendant, who was a servant of the Albion Insurance Company, had in his custody in-a.warehouse, of which he kept the key, certain goods of the plaintiff) which had been carried to the warehouse of the Insurance Company by the servants of the Company.

The only evidence of conversion was, that when the plaintiff demanded the goods, the defendant said that he could not deliver them up without orders from the Albion office. The learned Judge left it to the jury to say whether this qualification of the defendants’ refusal was a reasonable one, telling them that if so .there was not sufficient evidence of a conversion. The jury

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found for the defendant. Denman moved for a new trial on the ground of misdirection.

Abbott, Ch. J., Bayley, Holroyd, and Best, J. J., all concurred and held that there was no misdirection, and that “ if there be a qualification annexed to the refusal the question then is whether it be a reasonable one, and that such question is for the jury.” (See also Wilde v. Waters, 32 Eng. L. & Eq. R., 423; Mount v. Derick, 5 Hill, 456 ; Gunton v. Nurse, 2 Brod. & Bing., 447; Fouldes v. Willoughby, 8 Mees. & Welsb., 540; Hayward v. Seaward, 1 Moore & Scott, 459.)

The Judge told the jury that the subsequent offer by the defendants’ attorney before suit brought was not a bar to the' action, and the defendants’ counsel excepted to this part of the charge.

The case of Hayward v. Seaward, (1 Moore & Scott, 459,) was an action of trover to recover a steam boiler. The plaintiffs owned the boiler and demanded it in the month of October, 1830, and the defendants refused to deliver it. On the 12th of November following, the plaintiffs’ attorney directed a letter to the defendants and stated that he was instructed to commence an action against them and asked the name of their attorney. On the following day the defendants’ attorney addressed a letter to the plaintiffs’ attorney stating that the plaintiffs might take the boiler away. On the same day a writ was issued against the defendants.

The cause was tried before Tindal, Ch. J., who told the jury that the plaintiffs were not entitled to recover- after the offer of defendants made by the letter of the 13th of November to give up the boiler.

The Justices on the hearing, all concurred, holding that the ruling was correct, that the demand and refusal was only evidence and not conclusive of the fact of conversion, and that the refusal was cured by the subsequent offer made by the attorney before the writ issued. A new trial should be granted.

Woodruff and Moncrief, J. J., concurred in reversing the judgment on the ground that the defendants upon the facts proven were not liable for the acts of Miles, their Vice-President.

Judgment reversed, and a new trial ordered, costs to abide the event.