Kennedy v. Strong

In an action of trover for the conversion of goods which the defendant had received from the plaintiff, as his factor, the defendant is precluded by his admissions made subsequently to the conversion of property, in the plaintiff, from showing that the plaintiff’s property in the goods had been devested previously to his receiving them. But had there been no such admission. the de fendant might have setup pro perty in a third person. A discharge under the insolvent act of 1811, is no bar to an action of trover. The measure ' of damages in . trover is the value of the goods at the time and place of conversion. If a factor pledge the goods of his principal for his own debt, it is a conversion.

THIS was an action of trover for one bale and four cases of merchandise. The cause was tried before Mr. Justice Spencer, at the New-York sittings, in November, 1815. The goods in question were shipped at Liverpool, in March, on board the ship Oliver Ellsworth, belonging to Strong Sr Dam vis, of which firm the.defendant was a member, for New-York. The goods were to be delivered, pursuant to the bill of lading, to the plaintiff and his deceased partner, Stuyley, The vessel arrived off the harbour of New York in the month of May, 1811, but did not enter the waters of the. United States, and the master being informed that the non-intercourse with Great Britain was again in force, kept her lying off and on the harbour, for some days, until instructions were given by the owners to proceed to Havanna; and the defendant went onboard of the vessel, as owner and supercargo, and sailed in her to the Havanna, having been intrusted by the plaintiff and his partner with the care of their goods, and directed to sell them at what price they would command. The vessel, with the goods on board, arrived at the Havanna, in June, 1811. The plaintiff read in evidence an affidavit made by the defendant, on the 13th July, 1811, after his return from the Havanna to New-York, before a notary public, in which he stated that he deposited the goods in question, for sale, in the hands of Vincent Gray, merchant, at the Havanna; that the" goods were the property of George Stuyley Go., and that the deponent never had any right or property in them whatever, except as agent or consignee, and which was conferred on him as one of the firm of Strong S' Davis, by virtue of a letter from Stuyley Sr Co.; that he never sold the goods by virtue of the power contained in that letter, but that an attachment having been issued against the property of Strong Sr Davis, for a debt contracted by them in the city of New-York, and the deponent having notice thereof, Vincent Gray became security for the payment of the amount of the attachment, and that the deponent left the goods in his hands and returned to New York. At the time of making this affidavit, the defendant said that he had left the goods in the hands of Gray, to indemnify him against his liability as security on that attachment. The plaintiff proved that the invoice price of the goods, with interest, amounted to 3,942 dollars and 9 cents. The defendant then moved for a nonsuit, on the ground that the plaintiff had no property in the goods, as they were forfeited to the United States, and because he had not proved the value of the merchandise at the Havanna at the time of the conversion : but the motion was overruled, and the defendant gave evidence of the value of goods, generally, at the Havanna, of a similar kind with the goods converted, about the time of the conversion, but gave no evidence of the price at which these goods were sold, nor did it appear that they ever had been sold. The defendant offered in evidence his discharge under the insolvent act of 1811, but it.was rejected by the judge: And the jury, by consent of parties, found a verdict for the plaintiff for 3,942 dollars and 9 cents, and also found the value of the goods at the Havanna, at the time of the conversion, with interest, to be 1,972 dollars. The verdict was taken, subject to the opinion of the court, whether the plaintiff was at all entitled to recover, and for which of these two sums the verdict should be entered.