دو ?'. Crossan was (6 John Cullen and the name "Dunne was also DELANEY mentioned. The sheep were within a few minutes purchased by WALLIS AND Mr. P. Graves, butcher, Rathgar, at 63s. each; and this price, SONS. less 17. 13s. for commission, and 2s. handed to Michael Crossan in cash, was paid to Michael Crossan by the defendants. The entry in defendants' books as to the transaction made at the time Public salesis in the words and figures following: 1884. masters-Con version. 1 15 0 Cash £64 8 0 And the invoice given to the said Michael Crossan at the time he received the 647. 88., which was paid him by cheque, was in the following words and figures: The special case then states that the twenty-one sheep were taken away by Mr. Graves immediately after his purchase, and that the whole transaction was closed by payment to Michael Crossan, by nine o'clock in the morning. That on the day following the sale the plaintiff informed the defendants at their office in Dublin that the sheep had been stolen off his lands, and that this was the first information the defendants had on the subject. That the defendants informed the plaintiff of the facts herein before stated, including the name and address of the purchaser of the sheep. Now, on the statement of facts that I have read, we think that we must assume that the possession of those sheep which were brought to the stand of the defendants in the public market, and which Crossan asked the defendants to have sold for him, was given to the defendants for the purpose DELANEY WALLIS AND 1884. version. of the sale. The facts of the case are inconsistent with any other supposition. We also think that we must assume that the twenty-one sheep when taken away by Graves were taken away from the stand of the defendants, the sellers, and that the defendants were the persons who gave the sheep over to the purchaser Public sales to take away. It has been suggested that the position of the masters— Con- defendants was not different from that of a bystander listening to and promoting a bargain between a person selling in a public market and a purchaser, and not having possession of the articles sold. The case, in our opinion, is entirely inconsistent with such a state of facts. The statements that the defendants are salesmasters, that they have a stand in the cattle-market, and that Crossan employed them to have the sheep sold for him, are pregnant with this, that the defendants got possession of the sheep to sell, and having that possession sold them and delivered them to the buyer. A very important question then arises, whether, this being a market overt, and the defendants giving a good title to the purchaser of the sheep by their sale, the defendants are liable to the real owner for the value of them. We are all of opinion that the Court of Exchequer was right in giving judgment for the plaintiff, and holding that the defendants were guilty of conversion of the sheep. When the facts are stated as we find them there is no doubt as to the law. The principle applicable to such a case received a good deal of attention in a case bearing some resemblance to the present, that of Ganly v. Ledwidge (Ir. Rep. 10 C. L. 33), where Lord Fitzgerald and Barry, L.J. held that salesmasters who had sold a cow that had been stolen from the plaintiff, and had delivered the beast to the purchaser, were liable in trover. Whiteside, L.C.J., was of a different opinion. I beg respectfully to express my dissent from his judgment. He would appear to have been led astray by some observations in the case of Greenway v. Fisher (1 C. & P. 190), as to persons acting in a public employment being protected. Certainly the judgments of Lord Fitzgerald and Barry, L.J., commend themselves to my mind as being entirely right, there being no warrant for the proposition that a seller in market overt is protected as well as a buyer. It is said that this is a case of great hardship on the defendants. I do not see that it If one of two innocent parties must suffer, the responsibility must rest where the law casts it; but I really think that salesmasters may very well be required to make some inquiry as to the persons who bring them cattle for sale before they effect a sale for them. The law bearing on this subject has been most exhaustively treated in a case of Hollins v. Fowler (L. Rep. 7 H. of L. 757). The facts of that case are very different from the present, but the principles of law applicable are, I think, very clearly stated in the judgments in the House of Lords; and I think it will be found that those principles are clearly applicable to the present case. That was not so strong a case as the present for holding the defendants liable, for there the defendants had is so. DELANEY V. WALLIS AND 1884. version. not done any act which changed the property in the goods sold by them, while here the salesmasters put the property in the animals sold into the purchaser by their sale of them in market overt. There Lord Chelmsford says (p. 795): "To my mind the principle which fits this case is that any person who, however innocently, obtains possession of the goods of a person who has Public salesbeen fraudulently deprived of them, and disposes of them, whether masters- Confor his own benefit or that of any other person, is guilty of a conversion." Apply that position to this case. These defendants innocently got possession of the sheep, they disposed of them, and they deprived the plaintiff of his right of property by making this sale to Mr. Graves. They are therefore, if the proposition of law is rightly stated in the judgment I have quoted, guilty of a conversion. In his judgment Lord Chelmsford refers to the case of Stephens v. Elwall (4 M. & S. 259), mentioned by Blackburn, J. in his opinion delivered to the House of Lords, and repeats Lord Ellenborough's observations: "The clerk acted under an unavoidable ignorance, and for his master's benefit, when he sent the goods to his master, but nevertheless his acts may amount to a conversion; for a person is guilty of conversion who intermeddles with my property and disposes of it; and it is no answer that he acted under the authority of another who had himself no authority to dispose of it." And adds: "This case was decided sixty years ago, and I do not find that the authority of it has ever been disputed." Lord Cairns opens his judgment with this observation: "My Lords, in this case, having had the advantage of reading beforehand the opinion of my noble and learned friend who has moved the judgment of your Lordships, and agreeing entirely with that opinion, I do not delay your Lordships by any reference to the facts of the case." The other lords concurred. Now the familiar case of an auctioneer, which was put at an early stage of the case by the Lord Chief Justice of the Common Pleas, illustrates very well the true state of the law. The auctioneer who gets possession of the articles sent to be sold by him for the purpose of sale, and sells them, is liable to the true owner on all the authorities. The fact of his exercising a public employment is no protection to him. The case cited in argument (Cochrane v. Rymill, 40 L. T. Rep. N. S. 744) is a very remarkable confirmation of that doctrine. There Bramwell, L.J., says: "It is no doubt a very hard case for the defendant, who has acted throughout innocently in the matter, but setting aside the hardship of the case, the law applicable to it is perfectly clear. Here is Peggs, a man who is not the true owner of these goods, but appearing to act as such, and who has no power whatever to sell, takes them to the defendant, and gets a loan from him upon them. The defendant keeps them, and finally sells them in such a way as to pass the property in them to the buyers; and if that is not a conversion, then I think there can be no such thing." He unquestionably puts the case which has here been suggested at the bar of a man bringing a horse by DELANEY で WALLIS AND 1884. the bridle to an auctioneer, and saying, "I want to sell my horse," and the auctioneer thereupon finding him a purchaser, and the horse being sold while the owner is still holding him by the bridle, and he himself giving the horse to the purchaser; it is suggested, rightly enough, that in such a case the auctioneer Public sales- may not be liable to the right owner, as having never got posmasters— Con- session of the horse he might not be regarded as guilty of conversion. That state of things, as I have already shown, does not exist here. We find that the defendants got possession of the plaintiff's sheep, that they sold the sheep when in their possession, and gave possession of them to the purchaser. We affirm the judgment of the Exchequer Division, and give judgment for the plaintiff for the sum of 711. 88. and costs. version. MORRIS, C.J.-I concur in the judgment of the Lord Chancellor, and I can hardly add anything to it. In my opinion the law is perfectly plain once the facts are ascertained. The general principle applicable to the case is admitted law, viz., that when a person, however innocently, intermeddles with and disposes of the property of another, he is liable to the owner in an action of trover. If there be any exception to that principle, I have not found any case establishing one, nor has one been cited in the argument. The defendants, Messrs. Wallis and Sons, are under some impression that because they sold in market overt they should be protected; from some confusion of thought they suppose that the vendor is entitled to the protection which, for the benefit of trade, is afforded to a purchaser in market overt. Then some stress was laid on their being "public salesmasters." They are men who carry on their business coram publico, but for their own benefit, their own emolument, and their own advantage; their office is no further of a public character, and they are no no more than auctioneers. In fact, the endeavour of Mr. Kisbey, who so ably argued the case, was to escape out of the facts of the case, viz., that the sheep were put into the possession of the defendants and by them sold to Graves. An attempt was made to argue that the sale was by Crossan, the thief, and it was suggested that he may have been there bargaining. I will not adopt that assumption, but hold as a matter of fact that the sheep were sold by the salesmasters. A salesmaster is not in the position of a mere intervenient, of a negotiator, or friendly person helping to make a bargain between a vendor and a purchaser, but he is a vendor, and sells the animals, and gives possession of them. these be the facts of the case, I think the case is perfectly clear and free from doubt. If FITZGIBBON, L.J.-The only doubt I entertain is upon the sufficiency of the statements in the special case to elucidate the facts. I am not quite certain that we would not act more prudently by declining to give our decision unless the parties can agree to amend the case by stating that before the sale the custody of the sheep was, for the purpose of the sale, given to the defendants, who accepted it by placing the sheep DELANEY V. WALLIS AND 1884. upon their stand; and also that the defendants made the sale, paid the seller, looked to the purchaser for the price, and in pursuance of the sale delivered the sheep to the purchaser. It, however, I think, sufficiently appeared that all these matters of fact are in accordance with the truth, they are consistent with, if not implied by the statements of the special case; and, assuming Public salesthem to be established, I have no hesitation in concurring with masters - Conthe Lord Chancellor and Chief Justice. The defendants had version. such a special possession of the sheep as would have entitled them to maintain an action of trover against a wrongdoer; having such a possession they parted with the sheep to a purchaser with the intention of passing the property, and they are, on first principles, liable for sending the plaintiff's property in a wrong direction by a sale and transfer to which they were parties. As to the argument ab inconveniente, I think there is no hardship or injustice in holding salesmasters liable if they wrongfully sell property for people of whose title they are ignorant, and of whom they know nothing. Here it appears that the defendants did not ascertain even the name of the person for whom they acted. BARRY, L.J.-Assuming the facts to be as specified by the Lord Chancellor and Morris, L.C.J. (and I think we are justified in so inferring from the case stated), I do not think that the question so elaborately discussed in Hollins v. Fowler (L. Rep. 7 H. of L. 757) arises at all. The position of the defendants here does not, in my opinion, resemble that of the broker who acts as a mere intermediary between an intending vendor and an intending purchaser. The defendants here had the physical possession of the animals, they effected the sale, delivered them to the buyer, and by the sale being in market overt they divested the owner's property until conviction of the thief. I think their action in the transaction constituted a conversion, and that the decision of the Exchequer must be affirmed. Solicitor for the plaintiff, J. Mara. Solicitor for the defendants, T. G. Giffard. |