The defendant is a commission merchant. One McLaine had a quantity of logs in the Penobscot boom, in the spring of 1870, which he employed the defendant to sell on commission. The defendant sold the logs which came through the boom that year to James Walker. A portion of the logs remaining in the boom through the winter -were, in the following April, run therefrom and sold and delivered by the defendant to said Walker, by whom they were manufactured and the lumber sold.
It appeared in evidence that in March, 1871, McLaine had sold the logs which remained in the boom to the plaintiff, but there was no evidence to show a delivery to him or that he had taken any actual possession of the same. Nor was it even alleged that such was the case. The jury found that the defendant had no knowledge of the sale from McLaine to the plaintiff until after the sale and delivery of the logs remaining over to Walker. The plaintiff proved a demand and refusal and then commenced this action of trover. Is it maintainable ?
At the time of the demand made upon the defendant he had none of the logs in controversy in his possession or under his control. They had long before been sold and manufactured. The *482defendant could not deliver what he had not, nor what was in the possession of others. Demand and refusal are evidence of conversion when the j>erson upon whom the demand is made has the power to deliver the articles demanded, but when he has neither constructive nor actual possession and no right to or interest in the property and could not comply, a demand and refusal are not proof of conversion. Davis v. Buffum, 51 Maine, 160. The demand and refusal, under the facts proved, not being sufficient to support the action, there must be other proof of conversion to enable the plaintiff to maintain it. Indeed, no demand was necessary, if the defendant was guilty of a tort in selling. Was there any conversion of the plaintiff’s logs prior to the demand? For if there was, his case would then be made out.
Trover is an action of tort. The conversion, which constitutes the gist of the action, is a tortious act. The action is not maintainable without proof of a tort on the part of the defendant. What tort has he committed ? What wrong has he done ?
The defendant received the logs in 1870 from the owner to sell for him at a stipulated commission. They were under his care and control. They were in his constructive or actual possession. It was his duty to make sale at the first good opportunity. If, having a good opportunity to sell, he neglected or omitted selling, he would be liable to his principal for the loss arising from such neglect or omission. He was bound by the contract between him and his principal not to cease in his efforts to make a judicious sale until the logs he wTas employed to sell were either sold or notice was given him that his authority was revoked. After accepting an agency he could not renounce it at pleasure without notice or i good cause, and if he should, he would be liable to his principal,' for any loss occasioned thereby.
If, then, he sold, would his sale pass a good title to the purchaser ? He had sold the logs which came through the boom in 1870 to James Walker, who thereby acquired a legal titleJ:o them. Walker knew the defendant to be a commission merchant. He purchased in good faith of one having control of the logs and re*483ceived a delivery of them. Suppose a part bad been due for the logs sold tbe year before, a payment to tbe defendant by one having no notice of the revocation, even though the agent had such notice, would have been protected. But it matters not whether? one buys of or pays to a commission merchant, the purchase andj the payment are alike valid, if the person purchasing of or paying! to the commission merchant is ignorant of the revocation of liis {, authority to sell or receive payment.
The law on this subject seems unquestioned. “ It is admitted,” observes Mellen, C. J., “in Harper v. Little, 2 Greenl. 18, that a revocation of a power not coupled with an interest will not defeat and render void those acts which are done in pursuance of it and prior to notice of such revocation being given to the attorney. Authorities are clear and direct on this point.” To the same effect is the law as laid down by Mr. Justice Story in his work on agency, § 470. As to the agent, the revocation “takes effect from the time when the revocation is made known to him; and as to third persons, when it is made known to them, and not before. Until, therefore, the revocation is so made known it is inoperative. If known to the agent, as against his principal, his rights are gone; but as to third persons, who are ignorant of the revocation, his acts bind both himself and his principal.”
If, then, the defendant had authority to pass the title to Walker, no revocation of authority being known, is ho liable as a tort feasor for doing precisely that which ho was employed to do, — that which he had contracted to do, — that which if he neglected doing lie would, so Sir as he knew, be liable in damages for not doing? If the sale passed the title, as it undoubtedly did, it was because the defendant had an authority to sell, which was unrevoked, or if revoked, no notice of the revocation had been given. Until notice of the revocation was given it was the bounden duty of the defendant to proceed in the performance of his contract with his consignor.
Undoubtedly, a sale of property in the hands of a commission merchant employed to sell such property is a revocation, — is an act *484revoking the authority given. But as long as it remains unknown the commission merchant is not bound by it. He cannot regard it. The property still remains in his hands and his obligations to sell remain in full force.
In the case at bar the logs were under the control of the defendant precisely as they had been the previous year. He received them from the boom and sold and delivered them to Walker before, as the jury have found, he knew of the sale to the plaintiff. The sale to the plaintiff by McLaine was made at a distance from the logs and he had no delivery of them. The logs, then, were subject to any lien which the defendant might have for advances or to any contract he might make in reference to them until notice should be given him that his authority over them was at an end. “ The contract of mandate,” observes Mr. Justice Story, in his work on Bailments, § 207, “ may also cease by. a revocation of the authority, either by operation of law or by the act of the mandator. It ceases by operation of law when the power of the mandator ceases over the subject-matter. . . If he sells the property it ceases upon the sale if it is made known to the mandatary.” These views are fully affirmed in an elaborate opinion of Sutliff, J., in Ish v. Crane, 8 Ohio, 520.
The defendant, having done only what he contracted to do and never having been notified of any revocation of his authority, is not to be held liable in tort for the performance in good faith of his contracts. Exceptions overruled.
CUTTING, Kent, DickersoN, and DaNPORTH, JJ., concurred. WaltoN, Barrows, and Tapley, JJ., dissented.