secure from loss in his dealings with others, and the defendant here is only in the position of a person who has trusted to the honesty of another, and has been deceived. He undertook to act as agent for one who, it now appears, was a thief, and, relying on his representations, aided his principal to convert the plaintiff's property into money, and it is no greater hardship to require him to pay to the plaintiff its value than it would be to take the same away from the innocent vendee, who purchased and paid for it. And yet it is universally held that the purchaser of stolen chattels, no matter how innocent or free from negligence in the matter, acquires no title to such property as against the owner; and this rule has been applied in this court to the case of an innocent purchaser of shares of stock. (Barstow v. Savage Mining Co., 64 Cal. 388; 49 Am. Rep. 705; Sherwood v. Meadow Valley Mining Co., 50 Cal. 412.) . . Indeed, we discover no difference in principle between the case at bar and that of Rogers v. Huie, 1 Cal. 429, 54 Am. Dec. 300, in which case, Bennett, J., speaking for the Court, said: "An auctioneer who receives and sells stolen property is liable for the conversion to the same extent as any other merchant or individual. This is so both upon principle and authority. Upon principle, there is no reason why he should be exempted from liability. The person to whom he sells, and who has paid the amount of the purchase-money, would be compelled to deliver the property to the true owner or pay him its full value; and there is no more hardship in requiring the auctioneer to account for the value of the goods, than there would be in compelling the right owner to lose them, or the purchaser from the auctioneer to pay for them." It was the duty of the defendant in this case to know for whom he acted, and, unless he was willing to take the chances of loss, he ought to have satisfied himself that his principal was able to save him harmless if in the matter of his agency he incurred a personal liability by the conversion of property not belonging to such principal. Judgment and order affirmed. GAROUTTE, J., MCFARLAND, J., and SHARPSTEIN, J., concurred. Rehearing denied. 490. STEPHENSON v. HART & WATERHOUSE COMMON PLEAS 1828 4 Bing. 595 CASE against the defendants as carriers. The first count of the declaration alleged, that the defendants had received from the plaintiff a box containing money, goods, and chattels, of the value of £50, to be safely carried by the defendants from Birmingham to London, and there, at London, "to be safely delivered for the plaintiff, for certain reasonable reward, to the defendants in that behalf"; yet that the defendants, not regarding their duty in that behalf, did not deliver the box and its contents for the plaintiff; but that defendants so negligently conducted themselves in the premises, that through their negligence and default the box with its contents was lost to the plaintiff. The second count stated, that the defendants had received the box and its contents of the plaintiff to be redelivered to the plaintiff; yet the defendants, not regarding their duty in that behalf, did not safely keep the box and its contents for the plaintiff, nor redeliver it upon his demanding it, but so negligently conducted themselves in the premises that through their negligence and default the box and its contents were lost to the plaintiff. The third count was in trover, with an allegation that the defendants had converted the box and its contents to their own use. Plea, not guilty. At the trial before Lord TENTERDEN, C. J., at the last Summer Assizes at Warwick, the facts were as follows: On the 27th of September, 1826, a person calling himself J. West, applied to the plaintiff, a comb manufacturer at Birmingham, for a parcel of combs, and after taking a certain quantity with him, ordered £30 worth to be forwarded as early as possible, addressed to J. West, Esq., 27 Great Winchester Street, London. In payment he gave the plaintiff a bill of exchange which had two months to run, purporting to be drawn at Edinburgh for £50 by Guerin, upon LeCointe & Co., merchants, Devonshire Square, London, and accepted by them, payable at Smith, Payne & Smith, bankers, London. There were several indorsements on the bill, and one purporting to be for the Royal Bank of Scotland. The plaintiff agreed to discount the bill; and on the 30th of September packed up the combs, and the change supposed to be due to West (£6. 10s.) in a box; addressed it as directed by West; and booked it for London at the defendants' office in Birmingham. The box arrived the next day: the defendants, upon offering to deliver it at No. 27 Great Winchester Street, found, not only that no such person as West was known there, but that the house had not been tenanted for a twelvemonth. About a week or ten days afterwards, the defendants received a letter from St. Alban's, signed J. West, informing them that a box for him had been addressed by mistake to Great Winchester Street, and requesting them to forward it to the Pea Hen, a public house at St. Alban's. The defendants forwarded the box accordingly, when a person calling himself West, who had been staying two or three days at the Pea Hen, and who had told the mistress of the house that he could not pay his bill till a box arrived in which he expected money, said on its arrival, "That is the box I expected; it contains money;" and proceeding to open it, took out money and paid his bill. He shortly afterwards disappeared. The bill of exchange given by West to the plaintiff having been presented for payment when it became due in December, it was found that there was no such firm as LeCointe & Co., in Devonshire Square, and that no such persons had ever kept cash with Smith, Payne & Smith. Application for the box on behalf of the plaintiff was then made at the defendants' office in London. They first asserted that the box had been returned to Birmingham, but afterwards produced the letter signed by West, and said that on receiving it they had delivered the box at St. Alban's, as before stated. Lord TENTERDEN, who in the course of the trial had observed that it was for the jury to say from the whole transaction, whether it was not a mere act of swindling, upon summing up, said that the question for them to consider was, Whether the defendants had delivered the box according to the due course of their business and duty as carriers? The jury having found a verdict for the plaintiff, damages £37 178. 6d...., Bosanquet, Serjt., showed cause. The defendants have acted with gross negligence, for the consequences of which they are liable, even though the person who received the box at St. Alban's were the same person who ordered the goods; of which, however, no direct evidence has been given. . . . Wilde and Adams, Serjts., contra. It is clear, from all the circumstances of the case, that the person who received the box at St. Alban's was the person who had ordered the goods of the plaintiff, and to whom the box was consigned; no one else at St. Alban's could have stated beforehand what were its contents. If he were that person, the defendants, so far from having been guilty of negligence, have strictly performed their duty. . . . The Court desired to hear Bosanquet on the applicability of the count in trover, thinking the evidence did not support the first two counts of the declaration. He referred to Noble v. Adams; Rex v. Jackson, 3 Campb. 370; Earl of Bristol v. Wilsmore, 1 B. & C. 514, and Duff v. Budd, to show that where goods are obtained by fraud, the property in them does not pass out of the vendor, who may therefore maintain trover; and to 2 Salk. 655; Perkins v. Smith, 1 Wils. 328; Youl v. Harbottle, Peake N. P. C. 68; Devereux v. Barclay, 2 B. & A. 702; and Stephens v. Elwall, 4 M. & S. 259, to show that delivery by a bailee to a wrong person amounted to a conversion; Ross v. Johnson, 5 Burr. 2825 [ante, No. 387], being distinguishable as a case of mere omission on the part of the carrier. In the present case if the property did not pass out of the plaintiff, the delivery was clearly to a wrong person. . . . PARK, J. I rather incline to think that the special counts [for negligence] in this declaration are not borne out by the evidence in the cause. But I consider the action to be maintainable upon the count in trover. From the cases which have been cited, it is clear that trover lies against a carrier for misfeasance in delivering a parcel to a wrong person. In Ross v. Johnson, a distinction was taken between misfeasance and nonfeasance, and it was holden that trover would not lie where a carrier had lost goods by robbery or theft, Lord MANSFIELD and ASTON, J., considering that a case of mere omission. But in Youl v. Harbottle, Lord KENYON, referring to Ross v. Johnson, said that, where the carrier was actor and delivered the goods to the wrong person, he was liable in trover. Abbott, C. J., in Devereux v. Barclay, took the same distinction between omission and commission, and held the defendant liable for having done an act which he ought not; Bayley, J., referred to Youl v. Harbottle. The question, threfore, on the present occasion, is, Whether the defendant has been guilty of a wrongful delivery for which trover lies? The plaintiff has sold goods to a felon (for I will not call him a swindler), who tendered a mere fictitious bill in payment. Upon such a transaction the question is, not what the seller means to do, but what are the intentions of the customer. Did he mean to buy in the present case? Never: he went with an intention to commit a felony. . . . It is clear that in the present case, the person calling himself West, never meant to pay for the goods, and the question of fraud was sufficiently left to the jury by the Chief Justice's saying, in the course of the trial, that the whole appeared to be a swindling transaction. Then, on summing up, he left it to the jury to say, whether the defendants had delivered the box according to the course of their business and duty. It is manifest that they had not. . . . A felon could not be the right person. . . . I am, therefore, clearly of opinion that the rule which has been obtained on the part of the defendants must be discharged. BURROUGH, J. I am of opinion that the verdict is right, that there is no ground for a new trial, and that the action is maintainable on the second count of this declaration. . . . The whole transaction was a gross fraud, the goods procured by a bill with a false drawer and a false acceptor, and no such person as the consignee ever heard of at the place to which he had addressed the goods. That circumstance ought to have awakened the suspicions of the defendants, and they were guilty of gross negligence in parting with them without further inquiry. In the result, they have the goods of the plaintiff in their possession, and they are liable to him if they deliver them wrongfully. GASELEE, J. I am of opinion that the defendants conducted themselves with gross negligence. . . . Then can the action be maintained in trover? There can be no doubt that this was a swindling transaction, and I incline to think that the question was sufficiently left to the jury by what fell from the learned Chief Justice in the course of the trial. But taking that to be so, my doubt is, whether, the goods having been delivered to the person who, up to the time the bill drawn by LeCointe became payable, was the person apparently entitled to them, the defendants are liable in trover for such delivery, as having been guilty of a wrongful conversion of the goods. For delivery to a wrong person, a carrier is no doubt responsible in trover; but from all that appears in this case, it may be collected that the person who received the box at St. Alban's was the person calling himself West, and the person to whom it was intended the box should be delivered. However, Lord Tenterden having left it properly to the jury to say whether the box was delivered in the due course of the defendants' business, a new trial could not be granted except upon payment of costs; the plaintiff, too, would amend, and probably recover upon the second trial, so that justice appears upon the whole to have been done; and my two learned Brothers entertaining a different opinion on the subject of the declaration, the rule must be Discharged. 491. EDWARDS v. AMERICAN EXPRESS COMPANY SUPREME COURT OF IOWA. 1903 121 Ia. 744, 96 N. W. 741 APPEAL from the District Court, Marshall County; OBED CASWELL, Judge. The opinion states the case. Affirmed. Binkford & Snelling, for appellant. J. M. Whitaker, for appellee. WEAVER, J. Plaintiff alleges that in the spring of 1901 he was the owner of $200, at Marshalltown, Iowa, which property the defendant, by its agents and employees, wrongfully took and carried away, and has failed to return or account thereof, and judgment is asked for the damages thus occasioned. The defendant answers that it is engaged in business as a common carrier, and that at the time mentioned in the petition one McArthur caused to be delivered to defendant at the Tremont Hotel two packages, said to contain one slot machine each, and at the direction of said McArthur defendant transported and delivered the same to one Schaefer in Chicago, Ill. It is further averred that said packages were received, shipped, and delivered in good faith, without any notice of the claim of plaintiff to any of said property, and that such notice was not received until after the property had passed from defendant's possession, and it was no longer within its power to return the same to plaintiff. The District Court rendered judgment in plaintiff's favor for the value of the machine, and defendant appeals. The presumption which supports the judgment of the trial Court in an action at law requires us to give the appellee the benefit of the most favorable construction which can fairly be placed upon the testimony. The record will justify the conclusion that at the time in question there were three slot machines temporarily stored in the basement or baggage-room of the hotel, although there is a testimony to support a finding that but two of those three were in this room; the third being in another room on the same floor. Two of |