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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 308 1st. Had the court below jurisdiction of the action and of the parties, so that it could render the judgment appealed from?
We will assume that the plaintiff was at no time a resident of this State, and that the learned justice at circuit erred in ruling, that as a fact established he was a resident. We do not however determine those questions, as we can otherwise dispose of the defendant's objection of want of jurisdiction.
The cause of action was of that nature, that although it arose in another State, the court below had jurisdiction of the subject-matter of the action. In this respect the case differs from Harriott v. New Jer. Trans. R.R. Co., 2 Hilton, 262, cited to us by the defendant. There the Court of Common Pleas of the city and county of New York had no jurisdiction of the subject-matter, being confined by the Code, § 33, in such case, to a cause of action arising in this State.
The defendant in the case at bar employed attorneys who, as officers of the court, served notice of the defendant's appearance, *Page 309 and put in and served an answer generally in the action, and raised no objection until after issue was joined and the trial commenced, that the court had not jurisdiction of the action and of the parties. In this respect the case differs from CumberlandCoal Co. v. Sherman, 8 Abbott Pr. Rep., 243, where the foreign corporation defendant appeared specially, and only for the purpose of moving to set aside the summons, etc., for the want of jurisdiction over it. Jones v. Norwich N.Y. Trans. Co. (50 Barb., 193) does hold that the objection may be made after answer, and even on appeal after judgment. Such holding was not necessary to the decision of that case, as jurisdiction was there retained by virtue of a statute other than the Code of Procedure. Nor do we agree in the dictum there expressed. We hold that where the court has the jurisdiction of the subject-matter or cause of action, that consent may confer jurisdiction of the person; and that such consent may be expressed by a foreign corporation, by appearing by attorney and answering generally in the action. Though it seems to have been thought that a foreign corporation could not at common law have been sued here, it was at the same time suggested that it would be competent for it to constitute an attorney to appear and plead in an action. (In reMcQueen v. The Middletown Manuf. Co., 16 Johns., 5.) Since that time it has been so often held that a voluntary appearance confers jurisdiction of the person, and the rule seems so reasonable in itself, that we have no hesitation in adopting it. In Faulkner v. The Del. Rar. Can. Co. (1 Den., 441), BEARDSLEY, J., after quoting TANEY, C.J., to the effect that a corporation, though it must live and have its being in the State of its creation, yet it may be recognized and contract in another, says: "hence it may prosecute and defend suits out of the State in which it was created." (And see Paulding v. Hud.Manufacturing Co., 2 E.D. Smith, 38; Watson v. Cabot Bank, 5 Sandf., 423, the judgment in which was affirmed in this court, 4 Duer, 606, note; Dart v. Farmers' Bk., 27 Barb., 337.) *Page 310
2d. Was there a conversion of the property by the defendant so as to warrant this action?
The defendant claims that there is no conversion unless there was an appropriation of the goods to its own use, and puts it in part upon the ground that the defendant was a common carrier. In the first place, the defendant does not in this action hold the place of a common carrier of plaintiff and his goods. If there is cause of action, as at present before us, it is because the plaintiff would not consent to take on with the defendant the relation of passenger with his baggage. He refused to do so, and demanded return to him of his goods. His trunks and their contents were then no longer to be treated in the transaction as baggage of a passenger in the hands of the defendant as a common carrier of him and them, but as property of one in the possession of another, delivery of which to the owner had been demanded and been refused. Again, a common carrier is not always excused in an action for conversion, because he has not in fact applied to his own use the goods committed to him in his public capacity. (Dewell v. Moxon, 1 Taunt., 391; Anon., 2 Salk., 655.) It is doubtless correct to say as a general proposition, that demand and refusal are not conclusive evidence of conversion. There may be such a state of facts shown in opposition as fully to rebut. But such may be the case also, as that demand and refusal shall be enough. If one have the power to deliver or to retain the article demanded, a demand and a refusal to deliver is sufficient evidence of a conversion. (Bristol v. Burt, 7 Johns., 254.) A refusal however, may be accompanied with such reasonable qualification as to furnish an excuse for retention, and then there is no conversion shown merely by proof of demand and refusal. (McEntee v. N.J. Steamboat Co., 45 N.Y., 34.) In the case before us, the qualification was, that the prearranged moment for the starting of this fast express through passenger train was so right upon the defendant, that to take the measures needed to get at in the baggage crate the trunks of the plaintiff, and removing them therefrom, to put them again in his possession, *Page 311 would take so long, as to derange the time table, insure delay, and incur the hazard of accident and damage. As to this, the business of the defendant as a common carrier of persons is an element in the case. We are not prepared to say that, under the usual circumstances of one taking passage with ordinary baggage, and at the last moment for his own convenience changing his purpose, it would not be a good excuse for a refusal to deliver it, so as to repel the conclusion of a conversion of the goods, that the delay needed therefor would throw out of gear the arrangements for the running of the train, and thus risk be incurred to the passengers and property carried. There would be to be sure, the physical power to delay the train and to overhaul the baggage and to find and deliver to him his own. But there would be on the other hand, the duty to others, of heeding all salutary and necessary arrangements for a safe journey for them. Does not the presence of this fact in any case, presenting the duty of a railroad company to be thoughtful of the safety of the passengers under its care, put a weighty consideration in the scale over against the evidence of conversion of baggage furnished by the simple fact of a demand and refusal to deliver it?
There is however, an important circumstance in this case, which is to be borne in mind in the consideration of this question. It was one of the regulations of the defendant that no baggage should be checked until the passenger tendering it should have bought his ticket. On the plaintiff offering his trunks for checks, he was required by the baggage-man in obedience to this rule, to first provide his tickets. During his absence for them, the baggage-man weighed the trunks, put checks upon them and placed them in the baggage crate, and upon the top of them was placed other baggage. After this was done the plaintiff returned with his tickets. The baggage agent then enforced upon the plaintiff another rule of the defendant. Inasmuch as the weight of the trunks was apparently more than the number of tickets bought would entitle the passengers going *Page 312 under them to carry as ordinary baggage, there was demanded of the plaintiff payment of a charge for the excess. It was the enforcement of this rule that caused the plaintiff to yield his purpose of travel by that train and to demand possession of his baggage again. Had the baggage-man adhered to the rule not to check and load baggage until tickets were bought, a rule of which he had demanded observance from the plaintiff, the trunks might have been beside the car, and surrender of possession to the plaintiff would have been easy. Had the man in the first instance, before requiring the purchase of tickets, asked for the extra charge for overweight, and had the plaintiff declined, then return to him of his property could have been easily made. No doubt but that the defendant had the right to neglect observance of any or all of these rules, they being made for its convenience and protection. But it had no right to first enforce one upon the plaintiff and then itself disregard it, and inflict the inconvenient result of vacillation upon him. It insisted that he should act up to it. While he was so doing, it neglected it, and in that neglect so placed his baggage, as that when it came to demand of him the observance of another rule of which he had not been theretofore notified, and he refused and demanded his property, the practical difficulty arose of the inability to meet the changed aspect of affairs.
It does not appear but that he would have refused to pay the extra charge had it been made before he was sent to procure his tickets, and thus his trunks never have gone out of reach. It is said that the baggage-master could not know that there was an excess of baggage until the number of tickets was apparent to him. He did know however, that apparently there was but one passenger with his wife, to whom it belonged, and if there was to be on his part, an enforcement of all the rules of the company before the plaintiff was to be allowed to take his place as passenger carrying his trunks with him, it was this agent's duty to keep matters in such a state as that it should be possible to meet the contingency of a refusal on the part of the plaintiff to comply, *Page 313 and of the consequent necessity of surrendering to him his property. This deviation by the defendant from the rule which the plaintiff was obeying, may have been the cause of the inability of the defendant to comply with his demand for the delivery of his property.
Again; the plaintiff after payment of the charge for extra baggage was required of him, first demanded the checks for his trunks; and it was not until the refusal of them that he made demand for the delivery of the trunks themselves. So that the defendant had the option of giving the checks or giving the trunks; and if the circumstances which it had brought about made the latter impracticable, the former might have been done. Thus there is another element in the inquiry as to the reasonableness of the excuse. And was then, that inability stated as an excuse for not making delivery a reasonable qualification of the refusal so to do?
It is not for the court, in this case, to pass upon this as a question of law, whether there was or was not a conversion. Whether or not the qualification of the refusal to deliver was reasonable in this case, is a question of fact for the consideration of the jury under proper instructions from the judge. (Mount v. Derick, 5 Hill, 455; Watt v. Potter, 2 Mason, 80; Alexander v. Southey, 5 Barn. Ald., 247;Delano v. Curtis, 7 Allen, 470.)
And in this view the testimony in the case, as to an arrangement between the plaintiff and Thompson, the president of the defendant, for the retention and delivery of the trunks to the plaintiff at Pittsburgh, and what took place between the plaintiff and the defendant's agent at Pittsburgh as to the trunks having passed on to Chicago, and the arrangement for him to receive them there, was proper to have been submitted to the jury as bearing on the question of a conversion. (Hayward v.Seward, 1 Moore Scott, 459.) The defendant is understood to claim that this testimony tended to show what should be termed a waiver, (Lucas v. Trumbull, 15 Gray, 306; Trayner v.Johnson [Head], 1 Tenn, 51); or a ratification of the act of the defendant in *Page 314 sending forward the baggage (Hewes v. Parkman, 20 Pick., 90); or an affirmation of the act, and a treating the defendant as the agent of the plaintiff in doing it, (Brewer v. Sparrow, 7 B. C., 310); or as a satisfaction for the wrongful act (id;Lythgoe v. Vernon, 5 H. N., 179); or as testimony tending to rebut the evidence of conversion furnished by the demand and refusal, and so going to show that there was no conversion by the defendant to its own use of the property of the plaintiff.
As the authorities are in this State, the last is the better view of it. See Hanmer v. Wilsey (17 Wend., 91); Otis v.Jones, 21 id., 394), which hold that a mere tender will not bar a tort, nor take away a right to a full compensation in damages; and Reynolds v. Shuler (5 Cow., 323), where it is laid down that trover lies for the conversion of a chattel, though it be restored before suit brought, the restoration going only in mitigation of damages.
The testimony should have been submitted to the jury on the issue of a conversion. And see Carver v. Nichols (10 Gray, 369); 7 Allen, supra.
And the learned justice erred at the circuit in taking these questions from the jury, and passing upon them as matters of law for his determination. It follows that there must be a new trial.
There are some questions made in the case which it may be well to pass upon now, to facilitate another trial if one should be had.
1st. We think that the defendant is liable for the act of the baggage-man at its depot at Philadelphia, though that act should be held wrongful. He was acting within the scope of his authority in requiring checks for the baggage, and in demanding payment of the charge for extra baggage, and in putting it into the car before payment thereof, and in refusing delivery of it for the reason given by him. This makes the defendant responsible for his act. (Higgins v. The Watervliet Turnpike and R.R. Co.,46 N Y, 23.)
2d. We do not think that the defendant can avail itself in *Page 315 this action of any of the rules which it invoked which have been laid down as to the liability of common carriers. As before remarked, the cause of action if any does not arise from any fixed relation of the plaintiff to the defendant, as a passenger with his baggage carried or to be carried by it. He expressly arrested the commencement of that relation and refused to enter into it, and for the express purpose of preventing it, demanded back his baggage. From that moment the defendant, if this action is maintainable at all, did not hold his trunks as common carriers of him and them, but as wrong-doers, tortiously detaining them and converting them to its own use.
3d. The plaintiff if he maintains his case, this being an action of trover, will be entitled to interest from the time of the conversion. (Hyde v. Stone, 7 Wend., 354.) In the action of trover, interest is as necessary a part of a complete indemnity as the value itself, and in fixing the damages, is not any more in the discretion of the jury than the value. (Andrews v. Durant, 18 N.Y., 496.)
4th. The memoranda received in evidence were not original entries; they were copies of originals. A copy of an entry made by himself or by any other person, may be used by a witness to refresh recollection (Marcly v. Shultz, 29 N.Y,, 346), and the original memorandum may be read in evidence, if made at or near the time when a material fact to which it relates occurred, and the witness producing it can swear that it was made correctly, though he cannot then recollect the facts contained in it. (Halsey v. Sinsabaugh, 15 N.Y., 485.) But a copy of a memorandum cannot be read as evidence of the contents of it. (29 N Y, supra.) Though the testimony as given in the appeal book, is confused as to the various memoranda produced on the trial, it is evident that the memoranda first made by the plaintiff and those helping him were destroyed, and that the papers exhibited to the witnesses were prepared from them; but it does not appear that they were literally copies. It seems that in preparing the lists of articles in the different lost trunks, the memories of *Page 316 those engaged, principally that of the wife of the plaintiff, were set at work, and as articles were brought to recollection from the bills of the purchase of them and otherwise, they were set down upon paper; different pieces of paper it would appear. When this process was completed, the contents of those papers were transcribed in gross. These were the completed and corrected memoranda, and substantially the original memoranda. It was as to these that the plaintiff's wife testified, that she knew all the articles named in them were in the trunks. We do not understand that the memoranda were read to the jury as evidence of themselves of what were the contents of the lost trunks, but only as a statement on paper in detail, of what this witness had testified were the articles contained in the trunks. In this view the memoranda were competent.
5th. The testimony as to the declarations of Richardson or other person, an agent of the defendant at Pittsburgh, was objected to as not accompanying any act of his as such agent. But this is a mistake of fact.
The plaintiff presented to him an order for the trunks, which was addressed to Richardson, and it was in answer to this order and excusing himself from compliance with it that he made the statement testified to. It was in the performance of his duty as agent and as part of the res gesta. It was not error to admit the statement.
6th. The objection to the testimony upon the value of the brooch given by the wife of the plaintiff, and the testimony, as to value given by Miss Merrick, that they were not shown to be qualified to speak as to value, was well taken. The foundation had not been laid by any proof of the knowledge of the witnesses upon the subject. The value of the articles was sufficiently shown by other testimony, so that the defendant was not perhaps, injured by this testimony, and we should not feel called upon to regard the admission of it as fatal, were it the only point taken.
7th. A question of some importance, is that raised by the objection to proof as to the necklace and other personal ornaments *Page 317 of the plaintiff's wife; and by the request to charge that the plaintiff could not recover in this action for them, or for her wearing apparel.
It appeared that the plaintiff and his wife were married in 1858, in Illinois, and that the diamonds, jewelry and ornaments were presents made there by the husband to the wife, and that the wearing apparel was bought for her after marriage, for her especial use, by the husband or with his money. It is claimed that all these are her own property, which the plaintiff cannot control; and that for a conversion of it, he cannot maintain an action. This action was commenced in 1867, but the alleged conversion was in March, 1862.
In the absence of statutes, varying the law, chattels of this kind, got for the use of the wife, would be deemed herparaphernalia. (2 Blk. Com., 435.)
As such they were subject to the control of the husband during his lifetime, and he alone could sue for an injury to, or a conversion of them. The defendant claims that this character of them has been changed by statute. It relies upon the statute of Illinois, passed 21st February, 1861, and which was given in evidence on the trial. That act was passed after the marriage of the plaintiff, and so far as appears, after the purchase of all the chattels in question. It enacts that the property of any married woman, belonging to her as her sole and separate property, shall remain such. But these chattels were not then the sole and separate property of Mrs. McCormick. The statute further enacts that the property which any married woman acquires during coverture, in good faith from any person other than her husband, shall be and remain her sole and separate property. But this property was not thus acquired by her after her marriage. As this property was all bought and put into the possession of the wife before she was a resident of this State and while she was a resident of Illinois, we must rest upon the law of that State, as it is shown to us to be, by the production in evidence of the statute above referred to. In this view, Rawson v. Penn. R.R.Co., lately decided by the Commission of Appeals and *Page 318 cited to us by the appellant, is not in point; as that rests entirely upon the statute law of this State. We see no reason why the plaintiff is not entitled to sue for an injury to or a conversion of this property claimed by the defendant to belong to his wife as her sole and separate property.
But for the error in not submitting to the jury the question of whether there was a conversion of the property by the defendant, as affected by the reasonableness of the excuse made for not delivering it on the plaintiff's demand, the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event of the action.
All concur upon questions discussed, save on question of conversion.
ALLEN, J., concurs with opinion.
CHURCH, Ch. J., and RAPALLO, J., are of opinion that, as matter of law, there was no conversion.
GROVER and PECKHAM, JJ., are of opinion that, as matter of law, there was a conversion and they dissent from result.
For reversal, CHURCH, Ch. J., FOLGER, ALLEN and RAPALLO, JJ.
For affirmance, GROVER and PECKHAM, JJ.
Judgment reversed.