[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 123
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 124 There was no delivery of the property, the subject of this suit, to Lovett Co., the fraudulent purchasers. The terms of the contract were cash on delivery; and there is no allegation or proof that the agreement was modified or changed in the slightest particular. Under this agreement, *Page 125 as the referee finds, the fifty barrels of potash were delivered, not to the purchasers, but on board the ship of which the defendant was master, and receipts taken, as the owner alleges, in the name of the plaintiff Brower. The answer of Peabody states "that the receipts so given contained a statement of the receipt in good order from the said John Brower on board the ship Fidelia, of the said fifty casks of potash, describing them by their marks;" and in reference to the usage, he avers "that the receipts for the goods and merchandise, so delivered on board such ship, are given by the master of the ship or his agent to the person delivering the same, and that bills of lading are not given to the individuals who have engaged freight therefor, nor to any other person, except on the production and surrender of said receipts to the master or his agent; and upon such production and surrender, bills of lading are forthwith given."
Looking at the acts of the plaintiffs in the light of the contract, and the custom thus established, it is manifest that there was no intention to deliver the property to Lovett Co., and that the owners never for an instant parted with the possession of the ashes, but placed them on ship board, in their own names, and took and retained in their custody the evidences of their title, furnished by the defendant, Peabody, which gave them the absolute control of the property, and bound the ship master to execute or withhold the bills of lading according to their direction. To call this a delivery to Lovett Co., or aquasi delivery, is a palpable misnomer. Stopping here, we find the property in the ashes unchanged. They were subsequently demanded of the defendant, who refused to recognize the right of the plaintiffs, and disposed of them in Liverpool by the orders of other persons. The onus then devolves upon the defendant to establish a legal right thus to interfere with the property of the plaintiffs without their consent and against their known wishes. He relies upon the fact that the receipts were on the same day presented at *Page 126 the office of the owners of the ship by Lovett, who procured a bill of lading in his own name; and in the same sentence the referee also finds, that the receipts were stolen by Lovett from the office of the plaintiffs. The act of Lovett, through which the defendant is compelled to make title, was a felony, for which he could have been indicted, and convicted under the 66th section of the article "Of robbery, embezzlement and larceny." (2 R.S., 679.) If the custom or usage which lies at the foundation of the defence is valid, the receipts were property, and the value of the commodity affected or transferable by the instrument would "be deemed the value of the article so stolen." (Id., § 66.) An argument is unnecessary to prove that a title thus derived cannot be urged to the prejudice of the true owner. The familiar principle is thus stated in Saltus v. Everett (20 Wend., 267): Property in things movable can only pass from the owner by his own act and consent, except in those cases only where such owner has, by his own direct voluntary act, conferred upon the person from whom the bona fide vendee derives title, the apparent right of property as owner, or of disposal as agent. No fact is found or exists in this case to make it an exception to the general rule. The receipts, although recognized as primafacie evidence of property in the thing receipted, in those who have them in possession, do not, it is presumed, enter into the currency, and like bank notes become the property of a bonafide holder.
It is said that nothing but the receipt were stolen; the ashes were untouched. The defendant converted the property; and this act, apparently unauthorized and tortious, he justifies, under evidences of title stolen from the possession of the owners. It seems to have been forgotten that the plaintiffs are not required to prove a negative; but the defendant must, in some way, show affirmatively a transfer of the property in bar of the action. No reliance was placed upon the facts occurring subsequent to the commission *Page 127 of the felony, by the learned counsel for the respondent. They can have no influence upon the decision.
It may be true, as a matter of fact, as the referee seems to have found as a conclusion of law, that the plaintiffs would have acted more wisely by giving immediate notice to the ship owners, instead of pursuing the thief and reclaiming their property; but an error in judgment of this sort, if it was one, cannot divest them of their property or create a title in the defendant.
The judgment in favor of Peabody should be reversed and a new trial ordered
Judgment accordingly.