Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1868-12-27

u not tao possession only which enables
tas agent to make az effective transfer
20 tide purchaser IN eueh case, but Il &
q the possession clothed with the GpDaren.
atie. PfomiEsoTy notes payable Il
bs2reT, bank notes. money, stand on ties
same rule. The bearer has. the spparenI
Ellie. Thusit Is that not possession alone
bur possession coupled with the apparent
lite, Will enable q fraudulent agent 4
make a good tile against the owner, tc
> purchaser for value and IN good faith.
The general rule In respect 10 personal
property Is, that q person csDnos trans,
Ter to another a higher title or greater
Interest than he has himself. But II the
owner gives Possession TO another, and
siso&n apparent authority 10 sell, or an
apparent Iigkt Of property or tile, il
VIII De fraud upon 6 purchaser from the
latter fAr the owner to deny TO the pur-
chaser the right OF such other to make
the sale. Negotiable paper, such as bills
or exch5ug5, prOmiss0ry notes, bank
checks, may stand upon another ground,
similar to that which applies TO resi-
estate, and which protects "a innocent
purchaser; the legal title coupled with sn
equal equity.
1t may, therefore, be taken to be the
settled law, that an agent has not, by
virtue OF possession merely, the power to
give to a purchaser, from him the title
against the owner.
Nor Is there any sound principle CD
which TO maintain, that the mere DOS
eession Of al agent, without any authori-
ty to sell actual or apparent, from the
owner, and without any apparent title
conferred on him by the owner,
will enable such agent to con-
fer upon his agent, power % sell and
defeat he title Of the owner. The owner
not having given his agent any suthOri-
- to sell apparent or 3ctual, and not
having clothed him with any title apDa
rent or actual, it is impossible TO impu'e
to the owner any freud wherefore 70 re
pei him Of the right to assert his title, or
upon which to raise against him, any bar
in the nature % IN estoppal an pals
The case Saltu5 We. Everett, reported in
20 WeBd. Reports, psge -, Is satilaetOry
authority for this. That Gaze wa: Bridge
and Vose, at New Ofleans, shipped s
quantity Of lead from New Orleans to
New York, by the brig Dove, OF which
Collins was moster, consigned TO Tafts,
Everett and Barrett ct New York, on ac-
count OF Everett. The Dove PIT into
Norfolk in distress, and Collins reshipped
the LEAD upon the schooner the Dusty
Miller to New York, taking from the
HANSL~A u NhC 1ASty AAltftI = Bls4
OF lsding in which Collins was
consignee. UDon the arrival Of the
lead in New York, Collins ordered the
lead to be delivered to C)hia 81 Cart.
wright, who afterwards sold IL to Saltus.
Neither CCffin q Cartwright nor Ssitus
had any notice OF Everettis title. Everett
demanded the lead from Ssltus, who re-
fused to deliver il up, and thereup0n EV-
erett sued Saltus in tTo7er, and had YER
dict and judgment. The case was thor
oughly considered in the Supreme Court
Of New York, and also in the Court of
Errors, and tins right Of Everett to re.
cover from Saltus was established. See
also, Williams and Chaplin vs.. Merle, II
Mend. 50.
Sales made by fraudulent vendees, Of
personal property, stand on ground some
what other than, and somewhat similar
to, unauthorized sales made by agents.
When a sale is procured TO be made BY
the fraud OF tins vsndee, such sale is void
able at the option Of the defraudec ven
dor. If before the vendor exercises mis-
Option- and avoids the sale, the iraudu-
lent vendee sell the goods to . purchaser,
for value, and in the due course OF trade,
and without notice OF the fraud practiced
on the original vendor, such purchaser
will obtain q good title against the oFigi-
nal vendor. The ground upon which the
innocent purchaser Is enabled 70
stand, is, that the original ven
dor Invested his fraudulent ven
dee, with the title or right OF property 10
the gooas. Thus the fauduieat yeDdes,
having the title Art possession of the
goods, comes within ile principles be-
fore stated ia respect of Unauthorized
sales by agents, an apparent right Of
property, coupled with possession and
given by the deirauded vendor. TSa!tus
%. Everett, 20 Wend:; Hoffman vs.
Carow; % Wend. 2s4; Anderson vs.
Dietriecht, II Wend- 81 Morgan Va.
Evahdafe, 3 SOeed 7G3; Gage. Dster &
Massey vs. Anperson, , Head $50.
lie the case in hand Armstrong, the
agent Of Pope, put the cotton in the
hands OF Taylor, Cole & Mcleod to sell
for him, and they sold the cotton for him,
ard paid the money over to him, and ali
this innocent Of any purpose OF wrong
to Pore, and without notice that Pope
had any interest in the cotton. Acd
counsel for Taylor, Cole & McLeOdiUsist
that upon such state OF facts, tsey are
not liable to Pope for the conversion OF
the cotton. The point is clear OF dOgbt.
The relation OF Armstrong TO Taylor, |
Cole & McLeod, was that of principal
and agent, as between themselves. The
act OF the principal which would be q
tort as against another, is likewise q tort
% against that other, where done by the
agent at the instance of his principal,
and Is the tort of the agent. The prinei-
pei cannot confer upon the agent au-
ebority to commit = tort upon the prop
erty of another, 1t matters nothing,
however innocent in intention the agent
may be who commits the tort. The tort
does not consist In the intention of the
wrong d0eT, but in the damage Done to
the injured party nor does the liability
of the party committing the tort, depend
upan his intention, but upon the uBsu-
thorizsd injury done to the party injured.
St0 Agency, SIS. 500, 81, 3i2.
The case OF Lee vs. Mathews, 10 Ala
632, was where the defendant, an agent,
who had bought for his principal, from
one having no authority to sell, the
slaves OF the plaintiff, was held liable to
the latter Ia trover, although the agent
had no notice OF the title of the plaintiff,
and held possession of the slaves for q
short time only, and had delivered the
slaves up 10 Ills principal, long before the
&C ton yrs brought.
Pratt. vs.. Kelly, is Ala, 7l6, was
where the defetdant, IS agent OF another,
sold the slaves of the plaintiff. The de-
fendant was held liable in tnever, though
he sold Is agent for another, and had no
notice of the plaintiffs right.
Hoffman vs. CaTOw, y Wend., PSI, |
stands on ground somewhst different
from the eases taken from the Alabama
Reports. Hoffman was an a%uctiOneer in
New York, aud 10 the regular course Of
his business, received for sale a quantity |
of merchandise, which had besn stolen
from the owner. HGffnan sold the goods, |
and paid over the proceeds to the thief,
and without any notice thst they were
stolen. Hoffman was held lia5.e for the
value 20 the owner CsroW, Tbs same
line of argument was pressed upon the
Courts Of New York in behslf Of Hoh
man as Aas been urged upon this Court
ia behalf Of Taylor, Cole q McLsod.
The argument Is drawn from sthe interest
OF conneioe. 10 give activity and pros
psrity to trade, it is said that men en-
gagged ia trade should be freed from dam
gers against which they cannot guard
with reasonable vigilance and caution,
and that the owners of merchandise
should suffer the consequences OF their
misplaced confidence IL the persons to
whom they intTust the possession OF their
property. The Courts of New York, /
reprssentinE and alive to the interests OF
the tra& bf their own great commercial
emporium, upon ths most thorough, and
exhaustive discussion OF the question:
came 10 the conclusion that II would be
unwise to depart from the settled rule OF
common law in rsspset to transactions