It is .established by the proof that some 5000 bushels of the wheat of the defendants was in store with John Wight and Co., in building No. 12, Atlantic dock, and that at the time the defendants, Dows & Guiteau, made the sale to Hows, Godfrey & Co. and drew the order upon John Wight & Co. for the 3037 bushels ff, they were entitled to that quantity from building No. 12. The sale, therefore, was a sale *242of the wheat of the defendants and not of the plaintiffs, and the order was to deliver wheat from No. 12, and not from No. 11. In the sale, and in the giving of the order, there was no attempt to dispose of, or exercise any control over, the wheat of the plaintiffs. A portion of the wheat to fill the order was taken from building No. 11 by direction of John Wight, and not by the direction or authority of the defendants; and there is no evidence that either of the defendants knew that the wheat delivered to Howes, Godfrey & Co. had not been taken from No. 12, until after the money was paid by them to Dows & Guiteau, and by them paid over to their principals, Church & Ball.
The complaint charges that the defendants, Dows &> Guiteau, without the authority or consent of the plaintiffs, took the wheat of the plaintiffs from the public stores as the property of Church &■ Ball, and sold the same and paid over the proceeds of the sales to Church & Ball, without the authority, knowledge, or assent of the plaintiffs. It is a rule of the common law, that a man can not be divested of Ms property without his consent. There are some exceptions, but the present case is not one of them. Possession does not carry with it the evidence of property, so as to protect a person acquiring it by purchase in good faith and in the usual course of trade, except when the property is cash, bank bills and bills payable to bearer. The plaintiff has not parted with his property in the wheat stored in building No. 11, and Ms right to re-pos'sess himself of it whenever he may find it, or to recover its value from those who took it, or into whose hands it may have come, is clear and unquestionable. /f The question here is, whether he can recover from the defendants." To maintain the charge contained in the complaint, he must do something more than establish his right of property. He must show that it was taken by the defendants, or that they have done some other act which in law will amount to a conver- — sion. The proof need not show a tortious taking, or that the defendants acted in bad faith. If it should appear that they obtained the goods fairly from a person whom they had reason to think was the true owner, or if they acted under a mistake as to the plaintiff’s title, or under an honest but mistaken belief that *243the property was their own, they would still be liable to the plaintiffs, if their acts in regard to it amount to a conversion, jj^hey have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they are guilty of the conversion, and their liability to the plaintiffs is established. In the cases cited by the plaintiff’s counsel upon the argument, the defendants were charged with the conversion, upon this principle.^ In Perkins v. Smith, (1 Wilson, 328,) the defendant was the servant of the plaintiff and disposed of the goods. In Everett v. Coffin Cartwright, (6 Wend. 603,) the defendants received the goods from the master of the vessel with whom they were shipped, and by his direction sold them, in ignorance of the rights of the true owner. In Williams & Chapin v. Merle, (11 Wend. 80,) the defendant was a produce broker and purchased and took the goods into his possession in good faith, for a valuable consideration, from a "clerk who had no authority to sell. In Saltus v. Everitt, (20 Wend. 267,) decided in the court of errors, Saltus, the defendant below, purchased the lead in question from Coffin & Cartwright, the defendants in the case, reported in 11 Wendell, at page 80. In Hoffman v. Carow, (22 Wend. 285,) the defendant, an auctioneer, sold the goods, which were stolen, and paid over the proceeds without notice of the felony. And in Covill v. Hill & Sunford, (4 Denio, 323,) the lumber in dispute was delivered into the hands of the defendants. The authorities all proceed upon the ground that the goods had been actually or constructively in the possession of the defendant in the action, or that he has interfered with them himself, or that others have done so by his direction. In'the present case there is an entire absence of evidence to establish anything of the kind. The order given by the defendants was explicit in its directions to deliver from building No. 12. It indicates all the defendants had done and all they meant to do. It could not be misunderstood by those to whom it was given or those to whom it was directed. And to construe it into an authority to deliver wheat from No. 11, or any other place, would be to abuse and pervert the uses of written language. John Wight & Co. were not the agents *244of the defendants in the sense for which the plaintiffs contend. Their power was limited to the delivery of the wheat from building No. 12, and if the delivery from building No. 11, in viqj^ tion of the injunctions of the order, could charge the defendants with the conversion, then the defendants would be equally chargeable if the wheat had been taken from any other store, or from any other place, no matter where. No rational system of jurisprudence could entertain such a rule. The acts of the defendants in regard to the delivery of the property do not, therefore, make out the conversion.
Did the defendants, by receiving into their own hands payment for the wheat delivered, approve and confirm the delivery from building No. 11, so as to make this act of John Wight their own ? It will be remembered that they were entitled to have delivered to their order from building No. 12, the quantity of wheat sold to Howes, Godfrey &. Co. and therein mentioned, and. that the order was in part filled from No. 12. The conduct of the defendants must be such as to signify, unequivocally, that they recognized and approved of the taking from building No. 11. A portion of the wheat was in fact delivered from building No. 12 in conformity with the directions of the order, and for this quantity the defendants were entitled to recover payment from Howes, Godfrey & Co. Without some knowledge that their orders had been disobeyed, some intimation of the wrong which had been committed, or some notice that the money was not all the proceeds of their own property, the mere act of receiving the money can not be regarded as a confirmation of what had been done at building No. 11. Had the wheat of the plaintiffs upon that delivery come to the possession of the defendants, then however innocent they might have been of any design to commit a wrong or to signify their approbation of a wrong committed by others, and however ignorant they might have been of the taking from No. 11, still they would be liable to the plaintiffs upon the authority of the cases cited. But the property never came to their hands ; it was not taken by their directions, and when the money was paid over they had no notice that a portion of the wheat had been taken from building No. 11, or that the money *245was in payment of any other property than that in store at building No. 12. The defendants could not ratify and adopt as their .own that of which they had no knowledge. Where the agent exceeds his authority no act of the principal will be construed into a ratification, unless it be done with a full knowledge of the facts and circumstances. (Story on Agency, § 258, and the cases cited in the notes. 4 Bing. 727. 22 Wendell, 324.)
The plaintiff intimates in his third point, that the defendants are liable to him for money had and received to his use. To entitle the plaintiff to recover upon this ground he must show that the money which he claims is his money. The action for money had and received applies to almost every case where a person has received money which in equity and good conscience he should refund to the true owner. “ It lies where one has had and received money belonging to another without any valuable consideration given on the receiver’s part; for the law construes this to be money had and received for the use of the owner only; and implies that the person so receiving, promised and undertook to account for it to the true proprietor.” (3 Black. Com. 163.) The rule, however, is subject to some limitations ; and it is not in every case where one man has money which another ought to have, that the action for money had and received will lie. (3 Bos. & Pull. 169.) Where the defendant tortiously takes the plaintiff’s goods and sells them this action lies. (Chit, on Cont. 5th ed. 607, note g.) And where the goods were taken by others and the defendant subsequently received and sold them and received the avails, the action was also held to lie. (2 Hall, 453.) But in those eases the taking or receiving of the property so as to constitute a conversion, were as essential to the plaintiff’s recovery as the sale and the receipt of the money. And I apprehend that unless the facts were such as to enable the plaintiff to maintain his action of trover for the goods, he could not recover. There is, however, this other obstacle in the way of the plaintiff’s claim for money had and received, in this action. The complaint is framed to recover the value of the property upon the ground of unlawful conversion. It does not charge that the defendants have received money to or for the use of the *246plaintiff. The claim for the unlawful conversion is founded upon tort; that for money had and received upon contract. They are distinct causes of action, and can not be joined in the same suit. (Code of Procedure, §167.) Indeed, the plaintiff has not attempted to unite them; for the complaint, although it sets out a part of the evidence in the cause, proceeds exclusively upon the unlawful conversion.
I am of opinion that the report of the referee should be set aside, and judgment should be entered for the defendants, with costs.
Judgment accordingly.