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 not against the owner, and it was held to be a conversion. Savage, Ch. 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. 103.) 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 J. R. 73), 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 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 Foote 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 distinguish

able. There, the agent was authorized 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." . .

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 element 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. 490.). . . . The judgment must be affirmed.

All concur. Judgment affirmed.

(31 N. Y.

304. CARNEY v. REASE

SUPREME COURT OF APPEALS OF WEST VIRGINIA. 1906

60 W. Va. 676, 55 S. E. 729

ERROR to Circuit Court, Wetzel County.

Action by J. L. Carney against A. B. Rease and others. Judgment for plaintiff, and defendants bring error. Affirmed.

W. G. Snodgrass and E. L. Robinson, for plaintiffs in error. E. B. Snodgrass, M. R. Morris, and Pressley D. Morris, for defendant in

error.

BRANNON, J. Rease, Heasly, and Dale, partners in drilling oil wells, hired of Carney a horse, to be used in a wagon with a horse of the firm in hauling tools and supplies in the oil field. The horse was so used five days, and returned to Carney. Three days later the firm sent its driver to him to hire the horse of Carney again. The horse was wanted, along with a horse of the firm, to haul an oil well stem. Carney says it was to be hauled to Littleton, nine miles; whilst the driver, introduced by the plaintiff, says it was to be used to haul the stem to the Johnston well, four miles further than Littleton. On Friday the horse worked in the wagon in hauling the stem to Littleton. On the next day it was worked hauling the stem to the Johnston well, and in hauling another stem for repair from the Johnston well to Littleton. The team staid over Saturday night at Littleton. Sunday morning the horses started from Littleton back home to Carney's, drawing two empty wagons. These three days were very hot July days. When the team came to a point eight miles from Littleton, the Carney horse died. Carney

brought suit before a justice, which went by appeal to the Circuit Court of Wetzel County, and, upon the close of the plaintiff's evidence, the defendants, offering no evidence, demurred to the plaintiff's evidence, and the Court having given judgment for the plaintiff, the defendants brought the case here.

1. The plaintiff claims that the horse was hired only for the trip from Carney's to Littleton, and that the use of the horse for the additional distance of four miles and return, hauling a stem, was outside the contract, a misuse of the horse, and that that further use alone, without proof that the horse's death came from that additional service, renders the defendant liable. Here is a volume of conflicting cases and texts. There is much authority for the position that when an animal is hired for a fixed time, and the bailee continues to use him longer, or where he is hired to drive to a certain place by a certain route, and the bailee drives him to a different place, or by a different route, or beyond the place contemplated by the contract, such departure from the contract is a conversion of the horse, for which the owner may maintain trover. 2 Cyc. 312; 3 Am. & Eng. Ency. 12 (2d Ed.) 752. If a loss of the animal occur, so that it cannot be returned, under this rule the hirer would be responsible. Story on Bailments, 413; 1 Tucker, book 2, 359. Likely this is the rule sustained by greater authority. Under this rule, mere departure from the contract makes the party liable, no matter whether the loss came from such departure or not. But another line of cases holds that such departure from the contract does not alone of itself impose liability, but it must appear that the loss was because of such departure. Van Zile on Bailment, 127; Farkas v. Powell (Ga.) 13 S. E. 200, 12 L. R. A. 397. Which line does our law follow? In Spencer v. Pilcher, 8 Leigh (Va.) 565, a slave was hired with the understanding that he was to be employed on a farm, whereas he was taken on a voyage on a boat down the Ohio and Mississippi rivers, and was drowned on the voyage. This case cannot be quoted for the rule of absolute liability because of mere departure from the contract, for the reason that the slave perished while being used in violation of the contract. The same as to Harvey v. Skipwith, 16 Grat. (Va.) 393, where a slave was hired under an explicit agreement not to use him in blasting rock, but he was so used, and in such use was injured from a blast. In Harvey v. Epes, 12 Grat. (Va.) 153, is a full discussion of this subject. Slaves were hired to be worked on a railroad in Amelia County, but were worked on the railroad in Chesterfield County, and, while working in Chesterfield, sickened and died. The Court held that the working of the slaves in Chesterfield was not, of itself, a conversion making the hirers immediately responsible for their value, whether occasioned by such wrongful act or not; but that, to make them liable, it must be found that the death was occasioned by the act of removing and working the slaves in Chesterfield County. So, our law is that mere deviation from the contract will not alone render the hirer liable for

the loss of a hired horse. The opinion in Harvey The opinion in Harvey v. Epes, construes, I think correctly, the case of Spencer v. Pilcher, as holding this rule. Counsel for Carney rests his case largely on the rule of absolute liability; but I do not think even if there were a contract limiting the use of the horse, there could be a recovery on that ground, since it does not appear that the death of the horse occurred during, or came from, the use of the horse on the trip from Littleton to the Johnston well. There is no evidence of misuse of the horse on the extra trip. True, it is proven that the horses were heated that hot day; but that is very usual, not abuse. That does not create liability. There is no showing that the death of the horse was caused by the extra trip. That trip was in the same line of work for which the horse was hired. He did not die during that trip. Hence, under Harvey v. Epes, there can be no recovery because of such deviation from the contract. Likely, if the horse had died while on the extra trip, the presumption would be that the extra trip was the cause of the death, throwing the burden on the hirer to disprove that fact. The doctrine of Harvey v. Epes is considered as sound in a note by Freeman in 12 Am. Dec. 621. I consider the other rule extreme and hard. See Doolittle v. Shaw (Iowa) 60 N. W. 621, 26 L. R. A. 366, 54 Am. St. Rep. 562, citing the Harvey Case, and holding its principles. President Lincoln, as counsel, successfully maintained this position in Johnson v. Weedman, 5 Ill. 495. . .

2. Whilst so far there is no ground of recovery, we think there is a ground for recovery. If it appears that the driver misused the horse, negligently used it, there is a liability. There is evidence that the horse was hot and tired when it got back to Littleton Saturday night. The driver, Swick, says so, and thus was apprised of the fact that the heat and labor affected the horse. Next day on the road, in great heat it is proven by Musgrave that as the team passed his house he saw that the horse was ailing, lagging back on the singletree, and asked Swick what was the matter with it, and Swick replied that the horse was sick, "given out," and they wanted to get him home, if they could, "but didn't know whether they could or not." Musgrave said the horse was just about able to walk. Postlewait states that Swick told him that, on the trip, going over to Littleton and the Johnston well, the horse got too hot, and he brought him back to Littleton, and started next morning and noticed coming up Knob Fork hill that the horse "began to fag." This was before the team reached Musgrave's. Thus, Swick knew the horse was hot Saturday, and on Sunday knew the horse was exhausted and sick from the terrible heat or other cause. We are allowed to say that he must have been very sick, as he died only a mile and a half from Musgrave's. Does it need authority to show that it was Swick's duty before he reached Musgrave's, and surely at Musgrave's, to stop using the horse, and unhitch him from the two wagons? Story on Bailments, 405, says that if a hired horse is exhausted the hirer is bound to abstain from using the horse, and if he

pursues his journey with the horse, he is liable for all the injury occasioned thereby. He says not only that, but also that the hirer must procure a farrier if to be had. The same is laid down as to a sick horse in 2 Cyc. 312, note. See Higman v. Camody, 57 Am. St. Rep. 33. But Swick drove the horse on that boiling day a mile and a half, the last half mile up a hill of heavy grade, until he died. The testimony of Swick betrays a consciousness that he had not used the horse right. For this reason of negligent misuse of the horse we affirm the judg

ment.

305. Eason v. Newman. (King's Bench, 1595. Cro. El. 495.) Action on the case upon trover. A special verdict was found, that one Pepper was possessed of those goods, and the defendant found them; and Pepper made the plaintiff his executor; and that the defendant, knowing them to appertain to the plaintiff, denied to deliver them to him upon his request: and, whether there were a conversion without any act done? was the question. And all the Justices, Popham absente, held, that it was a conversion by the sole denial. But being afterwards moved again, POPHAM held it to be no conversion: but it was cited at the Bar, that, 23 Eliz. in this Court, it was ruled to the contrary. Et adjournatur.

306. CROKE, J., in Isaack v. Clark. (1614. Bulstr. 306, at 311.) A bare denyal shall not make a conversion; neither shall there be any conversion so long as the privity of the bailment remains; but destroy this, and then otherwise it shall be. The baylee here is as a possessor bonae fidei. To make a conversion, there ought to be a pertinacy, and also a contumacy in the manner of the denyer, "contradixit, & ad huc contradicit" We are to see and to examine when the wrong begins to the party The wrong begins by the denyer; by this denyer, he is possessor malae fidei; by this denyer the privity of bailment is altogether destroyed. If they are bona peritura, as sower wine, corn musty, this denyer keeps the party from his possession, and this is a

wrong.

Littleton in his chapter of Rents, saith, that a denyer shall make a disseisin; if it be so in real things, a fortiori it shall be so in personals.

307. BAKER v. BEERS

SUPREME COURT OF NEW HAMPSHIRE. 1886

64 N. H. 102, 6 Atl. 35

TROVER, for twelve tons of hay; tried by the Court. The Court found for the plaintiff, and the defendant excepted.

C. A. Dole, for the defendant. The evidence of conversion consisted in (1) forbidding the sale by the officer at the time and place first appointed; (2) and on two or three occasions, after the execution sale, notifying the plaintiff that he must not remove the hay, and claiming that he, the defendant, bought the hay of the plaintiff with the farm.