Laverty v. Snethen.

A leading case is Syeds v. Hay, 4 T. R. 260, where it was held that trover would lie against the master of a vessel who had landed goods of the plaintiff contrary to the plaintiff's orders, though the plaintiff might have had them by sending for them and paying the wharfage. BUTLER, J., said: "If one man who is intrusted with the goods of another put them into the hands of a third person, contrary to orders, it is a conversion." This case has been repeatedly cited by the courts of this State as good law, and has never to my knowledge been disapproved, although it has been distinguished from another class of cases upon which the defendant relies, and which will be hereafter noticed. In Spencer v. Blackman, 9 Wend. 167, a watch was delivered to the defendant to have its value appraised by a watchmaker. He put it into the possession of the watchmaker, when it was levied upon by virtue of an execution note against the owner, and it was held to be a conversion. SAVAGE, C. J., said: "The watch was intrusted to him for a special purpose, to ascertain its value. He had no orders or leave to deliver it to Johnson, the watchmaker, nor any other person." So, when one hires a horse to go an agreed distance, and goes beyond that distance, he is liable in trover for a conversion. Wheelock v. Wheelwright, 5 Mass. 104. So, when a factor in Buffalo was directed to sell wheat at a specified price on a particular day, or ship it to New York, and did not sell or ship it that day, but sold it the next day at the price named, held that in legal effect it was a conversion. Scott v. Rogers, 31 N. Y. 676; see, also, Addison on Torts, 310, and cases there cited. The cases most strongly relied upon by the learned counsel for the appellant are Dufresne v. Hutchinson, 3 Taunt. 117, and Sarjeant v. Blunt, 16 Johns. 74, holding that a broker or agent is not liable, in trover, for selling property at a price below instructions. The distinction in the two classes of cases, I apprehend, is that in the latter the broker or agent did nothing with the property but what he was authorized to do. He had a right to sell and deliver the property. He disobeyed instructions as to price only, and was liable for misconduct, but not for conversion of the property, a distinction which, in a practical sense, may seem technical, but it is founded probably upon the distinction between an unauthorized interference with the property itself, and the avails or terms of sale. At all events, the distinction is fully recognized and settled by authority. In the last case SPENCER, J., distinguished it from Syeds v. Hay, supra. He said: "In the

Laverty v. Snethen,

case of Syeds v. Hay, 4 Term R. 260, the captain disobeyed his orders in delivering the goods. He had no right to touch them for the purpose of delivering them on that wharf.”

The defendant had a right to sell the note, and if he had sold it at a less price than that stipulated, he would not have been liable in this action, but he had no right to deliver the note to Foot to take away, any more than he had to pay his own debt with it. Morally, there might be a difference, but in law both acts would be a conversion, each consisting in exercising an unauthorized dominion over the plaintiff's property. Palmer v. Jarmain, 2 M. & W. 282, is plainly distinguishable. There, the agent was anthorized to get the note discounted, which he did and appropriated the avails. PARKE, B., said: "The defendant did nothing with the bill which he was not authorized to do." So, in Cairnes v. Bleecker, 12 Johns. 300, where an agent was authorized to deliver goods on receiving sufficient security, and delivered the goods on inadequate security, it was held that trover would not lie, for the reason that the question of the sufficiency of the security was a matter of judgment. In McMorris v. Simpson, 21 Wend. 610, BRONSON, J., lays down the general rule that the action of trover "may be maintained when the agent has wrongfully converted the property of his principal to his own use, and the fact of conversion may be made out by showing either a demand and refusal, or that the agent has without necessity sold or otherwise disposed of the property contrary to his instructions. When an agent wrongfully refuses to surrender the goods of his principal, or wholly departs from his authority in disposing of them, he makes the property his own and may be treated as a tort feasor." The result of the authorities is that if the agent parts with the property, in a way or for a purpose not authorized, he is liable for a conversion, but if he parts with it in accordance with his authority, although at less price, or if he misapplies the avails, or takes inadequate for sufficient security, he is not liable for a conversion of the property, but only in an action on the case for misconduct. It follows that there was no error in the charge. The question of good faith is not involved. A wrongful intent is not an essential clement of the conversion. It is sufficient if the owner has been deprived of his property by the act of another assuming an unauthorized dominion and control over it. 31 N. Y. 490. It is also insisted that the parol evidence of instructions not to part with the note was incom

Laverty v. Snethen.

petent to vary the terms of the contract contained in the receipt. This evidence was not objected to not only, but the point was not taken in any manner. The attention of the court was not called to it, and the court made no decision in respect to it. Under these circumstances it must be deemed to have been waived, and is not available upon appeal. But if an exception had been taken I am inclined to the opinion that the testimony was competent. It is not claimed that it varies that part of the receipt which contains an agreement to return the note or the money the next day, but that it varies the clause stating that the note was received for negotiation. This expresses the purpose of receiving the note, and if deemed a contract, can it be said that a parol mandate not to part with possession of the note before sale and receipt of money is inconsistent with it?

There is no rule of law which gives an agent the right thus to part with a promissory note under the mere authority to negotiate. The instructions were consistent with the purpose expressed, although if they had not been given a wider field of inquiry might have been opened. A promissory note passes from hand to hand, and a bona fide holder is protected in his title, and it might well be claimed that an anthority to sell would not ordinarily justify a delivery to a third person without a sale. Without definitely passing upon this question, we think that the question should have been in some form presented at the trial. In a moral sense the defendant may have acted in good faith, and hence the judgment may operate harshly upon him, but the fact found by the jury renders him liable in this action.

The judgment must be affirmed.

All concur.

Judgment affirmed.

Arnott v. The Pittston and Elmira Coal Company.

ARNOTT V. THE PITTSTON AND ELMIRA COAL COMPANY, appellant.

Contracts against public policy

-

(68 N. Y. 558 )

Combination to affect trade- Recovery for part performance under the contract.

Defendants, who were dealers in coal, entered into a contract with a coal company to take all the coal the latter should send into the State not exceeding 2,000 tons per month, and the coal company agreed not to sell coal to other parties in the State. The product of the coal company's mines largely exceeded the 2,000 tons per month. The contract was made for the purpose of enabling the defendants to have a monopoly of the market and to control the price. Held, that the contract was against public policy and void, and that the coal company could not recover the price of coal delivered under it.

A

CTION by plaintiff, as assignee of the Butler Colliery Company.

to recover the price of 2,700 tons of coal, alleged to have been sold to the defendant by the colliery company. The facts. are sufficiently stated in the judgment of the court. A judgment was entered for the plaintiff upon the report of a referee, and this judgment was affirmed by the General Term of the Supreme Court.

H. Boardman Smith, for appellant. The agreement was a conspiracy, which rendered all the parties to it liable to indictment. 2 R. S. 69, § 8; 4 Den. 352; 68 Penn. St. 174; 5 Den. 434; 2 Wheel. Cr. 262; 1 id. 142; 2 Colby, 34, 36; 14 Wend. 14; 4 id. 228; 2 Mass. 337, 538, 112; 6 id. 74; 9 id. 415; 3 S. & R. 220; 4 Metc. 111; 1 City H. Rec. 169; 7 Bost. L. R. 58. The agreement was void as against public policy. 14 N. Y. 181; 31 id. 476; Richardson v. Crandall, 30 How. 142; 2 Arch. Cr. L. 1072; Burt v. Place, 6 Cow. 431; Daimouth v. Bennett, 15 Barb. 543. The maxim "ex turpi causa non oritur actio," applies with like effect to a contract merely malum prohibitum as to one malum in se. Staples v. Gould, 5 Seld. 520; 26 Barb. 601; Ex parte Dyster, 2 Rose, 351; Aubert v. Maze, 2 B. & P. 374; 14 Johns. 273; Thalimer v. Brinkerhoff, 20 id. 397; 7 Wend. 280; 43 N. Y. 277; Jarvis v. Peck, 10 Paige, 118; 1 Hoff. Ch. 479; Sar. Co. Bk. v. King, 44 N. Y. 87; Story on Sales, 88 486, 496, 504. The Butler Colliery Company was “in

Arnott v. The Pittston and Elmira Coal Company.

pari delicto" with defendant in this transaction. 44 N. Y. 87, 94; 15 Barb. 541; Tracy v. Talmage, 14 N. Y. 162; 18 id. 244; Jaques v. Golightly, 2 W. Bl. 1073; Jaques v. Wilty, 1 H. Bl. 65; Williams v. Hedley, 8 East, 378; 11 Mass. 368; 22 Pick. 181; 23 id. 24; 3 Metc. 581; 7 Johns. 434; Oneida Bk. v. Ont. Bk., 21 N. Y. 496; S. H. Bk. v. Codd, 18 id. 244; Pepper v. Haight, 20 Barb. 430; 8 id. 439; 3 Seld. 328; Story on Sales, 505-507; Story on Cont. 624, 625.

John Murdock, for respondent. If defendant suffered by the rescission of the contract its only remedy is to recoup its damages. Snook v. Fries, 19 Barb. 313, 416; Winne v. McDonald, 39 N. Y. 233; Tipton v. Feitner, 20 id. 423, 433; Grant v. Johnson, 5 id. 253; Parmalee v. O. and S. R. R. Co., 6 id. 74; Clinton v. Hope Ins. Co., 45 id. 454; Glacius v. Black, 50 id. 145; 2 Pars. on Cont. 193; Sickels v. Pattison, 14 Wend. 257; Swift v. Opdyke, 43 Barb. 275; Selden v. Pringle, 17 id. 458; Pepper v. Haight, 20 id. 440. The contract being divisible, the court will disregard the bad and sustain the agreement upon the good consideration, and enforce it. 1 Pars. on Cont. 380, 381, note j; 2 id. 253; 2 Kent's Com. (m. p.) 468, and note (11th ed.); Add. on Cont., § 147; Story on Cont., § 459; Chitty on Cont. 694, 1001, and note; 3 Comst. 37; Metc. on Cont. 246, 254; 8 T. R. 411; 8 East, 231; Erie R. Co. v. U. L. Wks., 6 Vroom (N. J.), 240; 18 Penn. St. 50; Leavitt v. Palmer, 3 N. Y. 37; Oneida Bk. v. Ontaric Bk., 21 id. 491: Curtis v. Leavitt, 15 id. 12; Hardin v. Hyde, 40 Barb. 440; Leavitt v. Blatchford, 5 id. 10; Pepper v. Haight, 20 id. 438; Sanderson v. Goodrich, 46 id. 618; Grant v. Johnson, 5 id. 161; Mackie v. Cairns, 5 Cow. 547, 564; Coke's Litt. 206a-218a; Thomas v. Howell, 1 Salk. 170; McAllen v. Churchill, 11 Moore, 483; Mallan v. May, 11 M. & W. 274; Wallis v. Day, 2 id. 653; Green v. Price, 13 id. 695; Chapman v. Nainby, 2 Rayns. 1456; 1 Hoff. Ch. 479; Jarvis v. Peck, 10 Paige, 119; Alcock v. Giberton, 5 Duer, 76; Tracy v. Talmage, 14 N. Y. 181; Siger v. Daniels, 8 Alb. L. J. 45; Evans v. Harris, 19 Barb. 423. The contract was not illegal as a restraint in trade or otherwise. Van Marter v. Babcock, 23 Barb. 633; Chitty on Cont., § 112; 2 Pars. on Cont. 258, and note; Story on Cont., §§ 547, 550, 552, 553: 23 Barb. 633; 10 N. Y. 244; 1 Cow. 77; 6 Hill, 217; Comyn on Cont., p. 1, ch. 4, § 55; id., ch. 10, § 438; 2 Chitty on Cont. 407; Michel v. Reynolds, 1 P. Wms. 181; Gale v. Reed, 8 East, 80; 21 Wend. 157;