Summary
In Passaic Falls Throwing Co. v. Villeneuve-Pohl Corp. (169 App. Div. 727) the court said by CLARKE, J. (p. 729): "Every person is liable who personally or by agent commits an act of conversion or who participates by instigating, aiding or assisting another.
Summary of this case from Suzuki v. SmallOpinion
November 12, 1915.
Leslie C. Ferguson of counsel [ Ferguson Ferguson, attorneys], for the appellants.
Harold E. Lippincott of counsel [ Henry Hoelljes with him on the brief], Hedley V. Cooke, attorney, for the respondent.
The plaintiff, a corporation engaged in the business of throwing or spinning yarn from raw silk, had the possession of certain bales of raw silk. The defendant corporation, with the active aid of the defendants Pohl and Friedlander, unlawfully obtained said silk and converted it to its own use. The appeal is from a judgment entered upon a directed verdict against the defendant corporation, its president, Angelo De Villeneuve, and said Pohl and Friedlander, its vice-president and business manager.
The proof fully sustains the judgment against the defendant corporation. In Boyce v. Brockway ( 31 N.Y. 490) the court said: "The law on this subject is well settled. `The proof,' says BROWN, J., in Cobb v. Dows (9 Barb. 242), `need not show a tortious taking, or that the defendants acted in bad faith. If it should appear that they obtained the goods fairly from a person whom they had reason to think was the true owner, or if they acted under a mistake as to the plaintiffs' title, or under an honest but mistaken belief that the property was their own, they would still be liable to plaintiffs if their acts in regard to it amount to a conversion. If they have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they are guilty of a conversion, and their liability to plaintiffs is established.' This exposition of the law is fully sustained by the authorities [citing cases]. A wrongful intent is not an essential element of the conversion. It is enough in this action that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it."
So far as the defendants Pohl and Friedlander are concerned, as officers and agents of the defendant corporation, they participated in obtaining the possession of the property from the plaintiff and in converting it and the proceeds thereof to the use of the defendant. They were, therefore, joint feasors. Every person is liable who personally or by agent commits an act of conversion or who participates by instigating, aiding or assisting another. An agent or servant who converts the property of a third person is liable for such conversion, and it is no defense if his acts were committed in pursuance of his employment or for the benefit of his principal or master, though the servant or agent acted under a bona fide belief that his master or principal was the owner of the property and in ignorance of the true owner's rights, since one who interferes with personal property must at his peril see that he is protected by authority of the true owner.
The judgment was, therefore, rightly entered against Pohl and Friedlander. There is no satisfactory evidence, however, to show any personal participation by the defendant De Villeneuve in the transaction. It, therefore, follows that the judgment against him should be reversed and the complaint dismissed, and as to the remaining defendants affirmed, with the costs to the respondent.
McLAUGHLIN, LAUGHLIN and SCOTT, JJ., concurred; INGRAHAM, P.J., dissented in part.
I concur in the affirmance of this judgment against the defendant Villeneuve-Pohl corporation.
The action is for conversion of certain bales of silk, the property of the plaintiff. These bales of silk were delivered to the defendant corporation with the assent of the president of the plaintiff corporation, and in discharge of a claim made against the plaintiff corporation by the officers of the defendant corporation arising out of the transfer of other bales of silk by the defendant corporation to the president of the plaintiff corporation. As I read this testimony I do not think that merely taking possession of these bales of silk with the assent of the plaintiff's president was a conversion. The bales of silk, however, being in the possession of the defendant corporation when the plaintiff by its proper officers made demand for the return of these bales of silk, and that was refused by the defendant corporation, there was, I think, a conversion, as the bales of silk were the property of the plaintiff, to the possession of which they were entitled, which was sufficient to sustain the action.
I do not think, however, that the connection of the individual defendants with the transaction justified a verdict against them. They never had individual possession of this silk. At their request or demand the silk was shipped from the place of business of the plaintiff corporation to the defendant corporation. They were acting merely to protect the corporation of which they were the officers or employees; had no personal interest in the transaction; had no personal possession of the silk; and were not, as I view it, so connected with the transaction as to make them liable in conversion.
I, therefore, dissent as to the affirmance of the judgment against the individual defendants.
As to defendant De Villeneuve judgment reversed, with costs, and complaint dismissed, with costs. As to the remaining defendants judgment affirmed, with costs. Order to be settled on notice.