(dissenting). I agree in all material particulars Avith the statement of facts contained in *677the opinion of Mr. Justice Mullan. In effect the record shows that through an innocent mistake the plaintiffs delivered by messenger at defendants’ office, through the slot in a window intended for the delivery of securities purchased by the defendants, a bond which the defendants had not purchased and that the defendants promptly discovered the mistake and endeavored to return the bond to the plaintiffs’ messenger but, by innocent mistake on their part, actually handed the bond to a stranger instead of the plaintiffs’ messenger.
Thereafter the plaintiffs made a formal demand upon the defendants for the return of the bond, but at that time the bond was of course no longer in their possession and they could not comply with the demand. The plaintiffs thereupon brought this action alleging in the complaint that on June tenth they were under contract to deliver to the defendants a $1,000 bond of the Oregon Short Line Railroad Company and that they delivered to the defendants a ‘ ‘ certain bond ’ ’ which they believed to be a bond of the Oregon Short Line Railroad for the purpose of complying with their contract. That subsequently they were informed that the bond was a $1,000 bond of the Oregon and California Railroad Company, and the defendants refused to accept said bond as a compliance with their contract for a bond of the Oregon Short Line Railroad. That, “ by reason of the premises the plaintiffs are entitled to the return of the said bond of the Oregon and California Railroad Company and have duly demanded the same from the defendants but defendants have wrongfully neglected and refused to deliver same to plaintiffs.”
It is unnecessary now to consider whether the complaint sufficiently sets forth any cause of action, for no motion was made by the defendants to dismiss the *678complaint on the ground of insufficiency and no such point is raised on this appeal. It is to be noted, however, that the complaint does not allege any negligence on the part of the defendants and I agree with Mr. Justice Mullan that no such issue was litigated and that the judgment can be sustained only if, as a matter of law, the defendants’ mistake in returning the bond to the wrong messenger constituted a conversion of the bond or at least a breach of an implied agreement on their part to return the bond only to the plaintiffs.
While the slot in the window constituted an invitation to deliver at that place securities intended for the defendants, it is evident that it constituted an invitation only to deliver securities which the defendants were under some obligation to receive. Obviously no person could by slipping in other securities impose upon the defendants without their consent any affirmative obligation to care for these securities, to pay for them or even to receive them. The plaintiffs never intended to deliver to the defendants an Oregon and California Railroad bond. By their mistake the plaintiffs divested themselves of possession of the bond, but they did not transfer to the defendants either title or right to possession if they demanded the return of the bond. The defendants had not consented to accept the bond as a deposit; they claimed no title to it and they were not subject to any trust .or obligation as bailees, for a bailment arises only through an express or implied contract. They were put in possession of the bond without any agreement on their part, express or implied, to accept the deposit of the bond; and though persons who come into possession of the property of others without their consent are sometimes for convenience called “ involuntary ” or “ quasibailees,” they incur no responsibility to the true owner in respect thereof. It is only where they com*679mit some ‘ ‘ overt act ’ ’ of interference with the property that an implied contract of bailment is created. 1 Halsbury’s Laws of England, § 1078.
It can hardly be contended, however, that every “ overt act ” of interference with the property creates an implied obligation of bailment. Undoubtedly an “ involuntary bailee ” need not abandon the property,, but he may, without incurring further liability, at least take steps to preserve and care for the property. As stated by Mr. Justice Mullan it is only in case the involuntary bailee shall exercise any dominion over the thing so bailed that he becomes as responsible as if he were a voluntary bailee. The exercise of dominion, as I understand it, necessarily involves some act inconsistent with the complete right of dominion of the real owner, at least to the extent that it would be wrongful unless performed by some person to whom the owner had transferred the right to possession. In other words, an implied contract of bailment with its consequent obligations arises only where a person in possession of the property of another does some act which is inconsistent with the view that he does not accept the possession which has been thrust upon him.
The “ overt act ” which it is claimed constituted an improper interference with or act of dominion over the plaintiffs’ property consists of a delivery of the bond to a stranger who had no title to it. If the defendants had attempted to transfer to this stranger any title or right of possession of their own, then of course they could not claim that they had never accepted possession of the bond as bailees. They would then be on the horns of a dilemma, for they would have either denied the right of the true owner and thereby converted the property to their own use or would have exercised a right which was theirs only if they accepted the deposit of the bond left with them. *680In the case of Hiort v. Bott, L. E. 9 Exch. 86, relied on for authority by Mr. Justice Mullan, the defendant had in fact attempted to transfer to a stranger his own ostensible title to the goods and he had no actual title unless he first accepted an attempted delivery of the goods by the true owner to himself. The defendant , in that case had not received the barley into his pos- ' session but had received merely a delivery order which made the barley deliverable “ to the order of consignor or consignee ’ ’ and as pointed out by Bramwell, B., “ if the defendant had done nothing at all it would have been delivered to the plaintiffs.” In the language of Cleashy, B., “ He had no duty to perform in relation to the goods, and was a mere stranger, except that by mistake he had been made consignee, and so had ' an ostensible title, and could dispose of the goods.” Knowing that the ostensible title was vested in him only by mistake the defendant was induced by fraud to indorse the delivery order and thereby transfer to a third party the ostensible title to the barley.
The defendant could not indorse the delivery order unless he had title to the barley either in his own right or as agent for the true owner. He did not claim title in his own right, and if he had done so knowing that the ostensible title had been transferred to him only by mistake, such act would in itself have constituted a conversion. His act was lawful, therefore, only if he had accepted title as an agent. The fraud of the alleged broker induced him to believe that he had authority as agent of the true owner to transfer title, but he voluntarily assumed to act as agent of the owner and to accept title as such agent. By voluntarily doing an act which would be lawful only if he accepted title either in his own right or as agent of the owner, he was not in a position to say that possession of the property was thrust on him without his *681consent. He did in fact accept the title as agent of the owner and he then was bound to transfer the title only in accordance with authority actually given by the owner, and no mistake however innocent can avail an agent as an excuse for any other delivery.
It seems to me quite clear that this was the real ground of the decision in the case of Hiort v. Bott, supra, and the facts in the case before us are so clearly distinguishable that it can in no wise be regarded as an authority for the contention of these plaintiffs, and in fact the reasoning of the opinions rendered in that case supports the contention of the defendants herein. In the present case the defendants were put in possession of the bond by mistake; they discovered the mistake promptly and thereafter they committed no" “ overt act ” of interference with the bond except that they attempted to divest themselves of this possession by delivering the bond to a person whom they believed to be the messenger of the plaintiffs. That act was not only consistent with the continued title and right of dominion in the plaintiffs but was an honest attempt to restore possession to the true owners. It certainly cannot be contended that the defendants were bound at their peril to wait until the plaintiffs came to their office and physically took away their property; they could take proper steps to divest themselves of the possession thrust upon them by mistake without thereby impliedly agreeing, contrary to their clear intention, to accept possession as bailees with the consequent obligations flowing from such relation. It is quite immaterial whether we call these defendants bailees or not if we keep in mind the fact that the possession of these goods was thrust upon them by mistake of the plaintiffs and without their invitation or consent, and that, therefore, any liability for failure to return the goods to the true owner upon demand *682must be the result of some act voluntarily done by the defendants thereafter. An attempt to return the bond to the true owner or to the person who delivered it cannot be considered as inconsistent with a recognition of the complete ownership and right of dominion by the true owner and certainly shows no intent to accept the possession thrust upon the defendants by plaintiffs ’ mistake and I fail to see how, in the absence of such elements, any implied contract of bailment can arise. If in making an attempt to return the goods, which was lawful and proper in itself, the defendants used means which were not reasonable and proper and as a result thereof the goods were lost or misdelivered, then the defendants would be liable for negligence or possibly for conversion, for every man is responsible for his own acts; but if the defendants had a right to divest themselves of possession and attempt to return the goods, then in the absence of some obligation resting upon contract to deliver the goods only to the true owner or upon his order, I do not see how the mere fact that through innocent mistake the defendants handed the bond to the wrong messenger could constitute a conversion. The defendants could not properly disregard entirely the mistake in the delivery of the bonds. Common courtesy and prudence if not the law, certainly placed upon them the duty to take some steps by which the plaintiffs would be apprised of their mistake and enabled to regain their property. The defendants might have placed the bond in a safe and telephoned to the plaintiffs to call for the bond, but they were under the impression that the messenger who delivered the bond was still present and they gave the bond to him as a means of carrying out their evident duty to apprise the plaintiffs of their error and revest possession in them. The first course might have been the more prudent but as stated by *683Cleasby, B., in his opinion in Hiort v. Bott, supra, “ In such cases ” (i. e., in cases where a so-called involuntary bailee has received property into his possession for a purpose which cannot, as afterwards appears, be exactly carried into effect) “ the bailee has a duty to-perform in relation to the goods, and he is placed in a difficulty in the discharge of that duty by the default of the plaintiff, who ought not to be -allowed to complain if, under that difficulty, the bailee has acted in a manner which is considered reasonable and proper.”
I have examined the other cases cited in the briefs or in Mr. Justice Mullan’s opinion but I have found no case which is in any way inconsistent with these views. It would serve no purpose to analyze them separately for in every case it very clearly appears that where a party has been held liable for failure to return goods to the true owner on demand one of the following elements appeared: 1, the defendant had accepted the deposit of the goods and was therefore under a contractual obligation to return them on demand; or 2, the goods were still in the possession of the defendant when the demand was made; or 3, the defendant had done some voluntary act consistent only with the view that he claimed some property in the goods either as owner or agent of the owner. In all such cases, upon well established principles, the person in possession of the goods is bound to return the goods to the true owner on demand and a previous delivery to a third person even by innocent mistake cannot constitute any excuse or defense for a failure to comply with his obligation. Liability in law must in all cases be founded either on contract or on some wrongful act. The defendants in this case promptly evinced their intention not to accept the possession of the bond thrust upon them by mistake; they merely attempted to divest themselves of this possession, and certainly *684from such attempt no agreement to accept this possession can be implied. Until that time the defendants were under no obligation either to accept the bond as bailees or return it upon demand to the true owners unless at the time of the demand the bond was still in their possession; and it seems to me anomalous and illogical to say that an absolute obligation to return the bond to the plaintiffs and not to deliver it to any other person arises merely from the fact that the defendants did by mistake and through an honest disclaimer of any title or right of possession in the bond, physically deliver it to another. They claimed no title and no right to possession in the bond; they attempted to transfer no title or right of possession of their own in the bond; they had physical possession of the bond through plaintiffs’ mistake and they transferred nothing but this physical possession. The plaintiffs could not compel them to retain physical possession, and their act of transferring physical possession even to a stranger under these circumstances shows no exercise of any dominion over the property, for it constitutes no denial of the complete and sole right of dominion in the plaintiffs. In my opinion plaintiffs have, therefore, no right of action against the defendants unless the means which the defendants used to rid themselves of their possession were not reasonable and proper.
While no case has been cited which is exactly parallel to the present case, it seems to me that in several cases in the courts of this state these considerations have been assumed, even if not expressly stated. The case of Cohen v. Koster, 133 App. Div. 570, is very easily distinguishable from the present case, but there was in that case a delivery of plaintiff’s goods in defendant’s possession, by the defendant to a thief and both the prevailing and the dissenting opinion *685seem to me to assume that if the defendant had not knowingly accepted possession of these goods under an implied contract of bailment, he was not liable. The case of Krumsky v. Loeser, 37 Misc. Rep. 504, seems to me more directly in point and I think the decision is necessarily based upon the same view of the law of bailments as I have taken. I cannot see that there is any possible distinction in principle in regard to the obligations arising from possession which has been thrust upon the defendant either by fraud practiced on the true owner or by mistake of the true owner. While that case may perhaps logically be distinguished from the present case in that there the defendant did not know the true owner and was induced to give up possession of the goods to a thief through fraud, yet in my opinion these circumstances do not logically affect the rule that a person in possession of goods without his consent is not liable for conversion merely because he delivers them to a stranger in an attempt to revest possession in the true owner, though they may affect the question of the defendant’s negligence and whether he has acted reasonably and properly, but only these questions. I do not think that it is worth while to discuss the case of Morris v. Third Avenue R. R. Co., 1 Daly, 202. Regardless of whether it was decided correctly or not upon its peculiar facts, it certainly assumes that where possession of goods is thrust upon a so-called bailee without his consent, the “ bailee ” is not liable for a delivery to a stranger' made without negligence and with intent to deliver to the true owner. I cannot see that except in regard to the question of negligence there is any logical distinction in regard to the effect of delivery to a stranger, where the owner is known and where he is not known. In each case the holder has assumed to revest possession in the true owner *686and by mistake has delivered it to a stranger, and in neither case has he assumed any right of his own to dispose of the goods, and thereby exercised dominion over them; but in both cases the question still always remains whether the holder in so acting was free from negligence.
Even if under these pleadings we could consider the question of negligence, I find no evidence upon this question to sustain a judgment in favor of the plaintiffs. There is no doubt that the defendants acted in good faith and in the honest belief that they were handing back the bond to the messenger who delivered it. They had assumed no obligation of any kind to the plaintiffs; any act they performed was for the plaintiffs’ benefit and it was through plaintiffs’ mistake that they were called upon to act at all in the premises. Doubtless if they had foreseen the possibility of mistake they would not have delivered the bond to the wrong messenger; but it was not unreasonable to suppose that the messenger might be waiting or that if he had left, no thief would be in the office who would claim to represent the plaintiffs. They probably committed an error of judgment but for such error they cannot be held liable. Since they owed no obligation to the plaintiffs and acted in good faith under the reasonable belief that they were returning the bond to the messenger who delivered it, I see no ground for imposing upon them liability for the loss of a bond which would never have been lost but for the plaintiffs’ mistake, due apparently to the plaintiffs’ negligence..
The contention of the plaintiffs that under sections 129 and 131 of the Personal Property Law the defendants are liable for the price of the Oregon Short Line Bailroad Company bond which they had agreed to purchase from the plaintiffs because they failed to return *687to the plaintiffs the Oregon and California Railroad Company bond delivered in attempted compliance with the contract between the parties seems to require no detailed consideration. Even if the Personal Property Law applies to the sale of a bond, these sections would not be applicable to the facts in this case for the evidence shows that the plaintiffs delivered the bond by mistake and without any intent to pass title to the bond in compliance with their contract and that the defendants did not “ retain ” the bond but, on the contrary, promptly divested themselves of its possession.
For these reasons it seems to me that the judgment should be reversed, with costs, and the complaint dismissed, with costs.
Judgment affirmed, with twenty-five dollars costs, with leave to defendants to appeal to the Appellate Division.