Sarjeant v. Blunt

Spencer, J. delivered .the opinion of the Court.

The case of Syeds v. Hay, (4 Term Rep. 260.) goes farther to sanction this action than any other. There the owner of goods on board a vessel directed the captain not to land them on a particular wharf, against which the vessel was moored, which he promised not to do; but did so, and deli *76 vered them to the wharfinger for the plaintiff’s use, sup'pogjng |-jie wharfinger had a lien on them for wharfage.

It was held, that the owner, after demand, and refusal of the goods by the captain, might maintain trover against him, unless he could show the wharfinger’s right to wharfage. Butter, J. said, if a person take my horse to ride, and leave him at an inn, that is a conversion; for it brings a charge on me. So, if one man entrusted with the goods of another puts them into the hands of a third person, contrary to orders, that is a conversion. The case is a very familiar one, that trover will lie when a horse has been let to ride a fixed distance, and the bailee goes beyond the distance.

These principles do not bear directly on this case. In the case of Syeds v. Hay, 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. So, in the case of the horse left at the inn, the contract, either express or implied, was, that he was to be returned to. the owner; instead of which he was left at an inn, from which he could not be obtained without a charge: It was dispossessing the plaintiff of his horse; and where a horse is rid beyond the distance for which he is expressly hired to gó, it is an assumption of a right to use the horse contrary to the owner’s permission.

The case of Dufresne v. Hutchinson, (3 Taunt. 117.) is more in point; and I understand that case to recognize the principle, that when the plaintiff had given an authority to sell, though the articles were sold for a less sum than authorized, trover will not lie.

In the case of Cairns Lord, v. Bleecker, (12 Johns. Rep. 304.) though we do not expressly recognize the principle adopted in Dufresne v. Hutchinson, it is pretty evident that we are inclined to think it right. If every departure from instructions is to expose a party to an action of trover, I should consider it as introducing a new rule, which might operate injuriously; there is no need of this refinement. An action on the case is well calculated to redress any injury arising from a breach of instructions, In this case, the defendant was authorized to sell the chronometer for a particular price. The complaint is not, that he sold, but that *77 he sold it for a less sum, and thus violated his orders. The selling was not a conversion; but selling for a less price was a breach of duty. If the plaintiff’s doctrine be right, then I do not see why he could not maintain trover against the purchaser; for if the act was tortious, no property was acquired; and to maintain trover the act must be tortious. (2 Bos. 8r Pull. 439.) The sale was not a tortious act.

Judgment of nonsuit. t