Hunt v. Kane

In these cases 'the evidence does not so greatly preponderate against the facts found as to call for a reversal, on the ground of any of the findings of fact being against the weight of evidence. The appellants, however, on the facts found, insist that the judgment is erroneous, because they claim that those facts show the conversion by the defendant of the notes in question, and this is claimed on two grounds: 1st. That the defendant having refused to deliver the notes on demand, did thereby convert them. 2d. That the defendant having promised to procure the notes from those who rightfully held them, and deliver them to the plaintiff, and the plaintiff having thereupon consented to his so procuring the notes, his not procuring and delivering them amounts to a conversion of them by him.

As to .the first ground, the defendant never had any possession of or control over the notes, except as the agent of one who is entitled to hold them; consequently his refusal to deliver them on demand, could not constitute or be evidence of a conversion. As to the second ground, the omission or neglect to perform the promise cannot constitute a conversion of notes which the defendant never had in his possession, and over which he never had any control, and the possession of and control over which, so far as appears, he was never able in his individual capacity to obtain. If there is a sufficient consideration for the promise, the defendant may be liable to an action for a breach of his contract, but he cannot under these circumstances be held for a conversion, on the ground of his not fulfilling his promise.

The judgment should be affirmed, with costs.

Sutherland, J. concurred.

If the defendant had obtained the notes in question in the surreptitious manner in which the judge at the trial found, and afterwards transferred them for value to an innocent holder, there can be no doubt that he would be liable for a wrongful conversion. (Decker v. Mathews, 2 Kern. 313. Murray v. Burling, 10 John. 172.) The notes being in the possession of a bona fide holder, the maker and indorsers would be liable upon them to him. But, the intervening wrongdoer would be liable in this action for damages, to the person who had owned them, and who would have continued to own them, but for his wrongful act. Now the only difference between the case supposed and the actual case is, that, instead of selling the notes or getting them discounted after the conversion, he first obtained $1500 from his wife, who employed him to purchase the notes in question with this money, he having falsely represented to her that he could purchase with it these notes from Clark, Dodge & Co., when in fact he only paid his own check for this amount, which was in their possession. But to make his story good he fraudulently possesses himself of these notes. It is contended that because he was a mere agent for an innocent person, who employed him to make this pretended purchase, he, the perpetrator of the wrong, is exonerated' from liability. But, surely, it can be no excuse for a wrongdoer that ,he perpetrated the wrong while in the service of another, and in respect to the particular business which he was authorized to transact. Agency is no more a justification for a tort than'for a crime; and the agent, if he commits the tort with the consent and aid of the principal, is liable jointly with the latter; if without that consent and aid, he is solely and separately liable. If he converts property wrongfully for the. purpose of making a transaction apparently to correspond with false representations which he had made to his principal, and thus deprive the owner of it, he is liable to the extent of the injury; and the measure of the damages is the value of the property. In the present case these false representations were made for the express *644purpose of benefiting himself, namely, to raise $1500 to take up his own check for that amount which had been dishonored Bnt even if he had committed the act without any selfish motive, he alone is responsible.

The judgment should be reversed, with costs.

Judgment affirmed.

Sutherland, Clerke and Barnard, Justices.]