
    Thomas Thacher, plaintiff and appellant, vs. John Jay Hannahs, defendant and respondent.
    1. No presumption can arise, from any commercial custom or necessity, that, if one person unlawfully possesses himself of and converts another’s property to his own use, the latter, by electing to consider it a sale, can hold as security Tor the payment of the value of such property, other merchandise then in his possession, for the purpose of being sold by him as factor of the former.
    3. "Torts are not ordinary commercial transactions, and, therefore, are not subjects of a lien. Nor can the right of election, which the law gives a party injured, to convert a tortious conversion into a contract of sale, be made use of to create a lien for the money debt thereby produced, upon goods held in pursuance of an ordinary commercial relation by contract.
    3. The doctrine of a factor’s lien for a general balance of accounts, never went so far as to embrace even the price of goods, sold by a factor to his principal, not connected with the general purposes of their relation as principal and agent. Per Robertson, Ch. J.
    4. Where the minutes of the clerk show that the exceptions taken on the trial were directed to be first heard at a general term, and the case states that the verdict was taken subject to the opinion of the court at a general term, the record will be amended, to conform to such minutes.
    (Before Robertson" Ch. J., and Barbour and Jones, JJ.)
    Heard June 13, 1866;
    decided June 30, 1866.
    This was an action claiming the immediate delivery in it of sixteen bales of hops, alleged to be the property of the plaintiff, and wrongfully detained by the defendant. Such merchandise came into the defendant’s possession as the agent of the plaintiff for the sale thereof, and was the residue of one hundred bales originally delivered to him for that purpose. The defendant claimed a lien upon them for the value of nineteen bales, previously the property of the plaintiff, for which the former had paid the price to the latter. Such nineteen bales were part of a larger lot of one hundred and forty bales, which were the property of the plaintiff, and in the possession of a warehouseman, (Spader.) -The defendant proposed to the plaintiff to sell such hops for him, as his factor or agent, and the plaintiff delivered to the defendant an order on the warehouse keeper for the same, and the defendant delivered to such warehouseman such order, and, with the plaintiff’s consent, left the hops in such store, because his own was full. Subsequently the defendant sold and delivered to a ¡purchaser, (G-. W. Rychman, Jr.) out of such lot, eighty bales, and a few days afterwards sold the same purchaser thirty-six more of such bales. Such purchaser selected and set apart such last bales at the store of the warehouseman, marking them with a letter, (Gr,) and different numbers, but left them in such store. About a month afterwards the plaintiff desired from the defendant an account of the sale of all the hops sold by him for the former, including such thirty-six bales, which account the defendant rendered, charging therein his commission on such sale, and paid exactly.the residue of the amount, by checks, to the plaintiff. Two months after this the plaintiff gave the defendant an order on the warehouse keeper for such thirty-six bales, designated as having been weighed and marked as the purchaser, (Ryqkman had marked them,) but such warehouseman delivered to such purchaser only seventeen of the thirty-six bales so marked and numbered; nineteen others not so marked, but thus delivered, were returned by the purchaser to such warehouse keeper.
    At the time of paying the plaintiff the amount due him for the hops sold by the defendant, the latter “ gave him to understand that the thing was not settled between ” the purchaser and himself, and he (the defendant) “ would settle it with him.” The plaintiff acceded thereto, “and said it was all right.” The defendant admitted on his examination as a witness, that the plaintiff “ never asked him to advance money to him on merchandise * * and he made no advances,” and the plaintiff testified that he “ never got advances from ” the defendant. That it was his “ own business to advance. Nothing was said when ” he saw the defendant “ about the payment of the sales of the one hundred and forty bales (of which the thirty-six formed part) of his (the defendant’s) advancing to” the plaintiff. And again : “Nothing was said or intimated about his (the defendant’s) advancing money. He (the defendant) told ” the plaintiff “ he had sold them and got the money for them. The sale was a cash sale.”
    Evidence was given in the case tending to show that the warehouseman (Spader) had remaining in his possession only nineteen bales of the plaintiff’s hops which were not those selected and marked by the purchaser of the thirty-six bales (Ryckman.) That seventeen only of such last mentioned number were received and retained by the latter. That the residue of the lot were delivered on the plaintiff’s orders, and that the last so delivered were shipped by his orders to St. Louis.
    The action was tried before a jury, who found a verdict for the defendant, under the direction of the court, and assessed the value of the property taken, which had been redelivered to the plaintiff in the action, and damages for the detention. The minutes of the clerk showed that the exceptions taken in such case were directed in the first case to be heard at general term. The case stated that the verdict was taken subject to the opinion of the court at general term.
    
      0. Fine, for the appellant, plaintiff.
    1. There is a difference between a general and special lien.
    1. A general lien is the right to retain the property of another for a general balance of accounts ; it is not favored by the law, but is taken strictly. (2 Kent’s Com. 813, 817, 7th ed. Story on Agency, § 354.) Actual, unqualified, continuous possession is necessary to sustain a lien. (2 Kent’s Com., 7th ed., 813, 817, 819. Story on Agency, §§ 357-367. McFarland v. Wheeler, 26 Wend. 467. Winter v. Coit, 7 N. Y. Rep. 288, 294.)
    
      2. The lien must not be inconsistent with the nature of the contract. No lien can arise where from the nature of the contract between the parties, it would be inconsistent with the terms or the intent of the contract—for example, if the goods are deposited in the possession of a party for a purpose inconsistent with the nature of a lien, as to have them delivered to another person, or the like; in such cases no lien attaches. (Story on Agency, § 362, and cases cited.)
    
    3. It does not attach to claims in their nature of a tortious character, but only to such claims as grow legitimately out of usual charges for commissions, storage, and the like, in ordinary and usual transactions between the agent and the principal. Generally it may be stated that the same rules are adopted in respect to the nature of the claims for which a lien may be asserted as regulate the rights of the parties, in matters of account. So if a general lien is claimed for a general balance of accounts, the debt must be a balance arising out of transactions, similar to that upon which the particular lien arises. (Story on Agency, §§ 364, 365.)
    4. A general lien does not exist in respect to torts. (Sturgis v. Slacum, 18 Pick. 36.)
    II. The defendant was not in his transactions with the plaintiff, his factor.
    
    L “ A factor is a person to whom goods are consigned for sale by a merchant residing abroad or at a distance from the place of the sale.” The parties, plaintiff and defendant, both resided and did business in the city of New York, and even in the same street. (See Baring v. Corrie, 2 B. & Aid. 143, per Abbott, Ch. J.) None of the hops in question were ever consigned by the plaintiff to the defendant for sale or at all, but all of the hops were stored by the plaintiff with I. V. Spader & Co.
    2. The .defendant never had possession of any of the hops until after he had sold them for the plaintiff, and never got an order for them on the plaintiff’s warehouseman, Spader, for any of them until after he had sold them, and then only for the sole purpose of delivering them to the purchaser.
    
      
      (a.) The only hops that in any way affect the questions in this case, are (1) one hundred bales which the defendant sold for the plaintiff while they were on. storage with Spader, before the defendant got an order to deliver them to the purchaser, and (2) one hundred and forty bales (also on storage with Spader) which the defendant never had in his possession at all, which he sold for the plaintiff before he got any order for them;. such order was made for the sole purpose of transferring the goods so sold from Spader’s store to the purchaser.
    (b.) Sixteen bales, (called eighteen in the complaint,) belonged to the order for one hundred bales of August 15th, 1863, eighteen bales having been rejected by the purchaser, (Mr. Ryckman,) and left at the defendant’s store, whither they had been unnecessarily taken for the mere purpose of inspection, of which two bales were afterwards sold; for the recovery of these sixteen bales this suit is brought. The nineteen bales which the defendant charges the plaintiff with having wrongfully appropriated to himself, and on account of which the defendant claims a general lien, covering and entitling Mm to retain the sixteen bales from the lot of one hundred bales, are a part of the lot of the one hundred and forty bales.
    (c.) The one hundred bales were on storage with Spader, and the defendant had no possession of them, whatever, until after he had sold them for the plaintiff, and then received the order on Spader for them, only to enable him to deliver them to the purchaser. It was not necessary, but merely accidental, that they went to the defendant’s store at all. They should have been inspected at Spader’s. The defendant, therefore, had no charge, right, or control over them, except to deliver them to the purchaser. The defendant himself says : “ The facts of my receiving the eighteen bales of hops were ; I had sold one hundred, subject to the usual conditions, if they were sound.” He took them to Ms store merely to inspect them.
    
      (d.) Nor had the defendant ever any possession whatever of any of the 140 bales, or even received the order on Spader by which to deliver them to the purchaser, until after he had sold them. The order for them is dated September 15, 1863. Whereas the defendant, in his answer, himself swears that the nineteen bales, which were a part of the thirty-six bales, and both a part of the 140 bales, were sold by him for the plaintiff on the 14th day of September, 1863, thus affirming what the plaintiff testifies, that he, the defendant, never even received any order for any hops until after he had sold them. The defendant’s account sales, rendered 14th October, 1863, shows the same fact. So that the defendant never had any possession of these hops at all, nor any charge or control of them, except to deliver them to the purchaser, who, in every case, was determined before the order was drawn.
    2. “A factor is an agent employed to sell goods consigned to him for that purpose; the goods so received by him are called a consignment, and the person consigning them is called a consignor.” A factor is always entrusted with the full, complete and unqualified possession and control of the goods to he sold by him. (Story on Agency, § 34.) We do not suppose that even the defendant’s counsel, as a lawyer, would call the plaintiff, in his transactions with the defendant, a consignor, the goods a consignment, and the defendant a consignee.
    
    3. A factor makes advances on goods consigned to him, and that is one great peculiarity of factorship. But there can be no pretense of any advances by the defendant to the plaintiff; there was nothing for the defendant to advance upon. The plaintiff was a commission merchant, and his own business was to advance on merchandise consigned to him as a factor, from out the city. The defendant never did advance to the plaintiff; the sale for the plaintiff by the defendant was for cash; he had no authority to sell otherwise. The payment of $1251.15, or $657.97, part thereof was a mere payment to the plaintiff, of money which the defendant told the plaintiff he, had received on the sale. The defendant also says he made no advances to the plaintiff.
    
      4. It is conceded that such an agent as is known to the law as a regular factor, has a general lien as well as a specific one, for his advances, but it is most confidently insisted that the defendant was not a factor of the plaintiff.
    II. The defendant being, in his transactions with the plaintiff, nothing more than a mixed character of broker and warehouseman, had no lien.
    1. “A broker has not usually the possession of the subject of the sale, and has no lien. (Story on Agency, §§ 28, 34.) His business consists in buying and selling goods for another. (Baring v. Corrie, 2 B. & Ald. 137, 143, 148. 1 Domat, tit. 17, § 1, art. 1. 2 Kent’s Com. p. 809, 8th ed. n.) This description of an agent suits the real character of the defendant in his transactions with the plaintiff, (a.) The 140 bales of hops, in reference to which he seeks to establish a general lien, he never had in his possession at all, never even solicited or received an order for any or either lot of hops until he had first procured a purchaser, and he did not even undertake to close a sale until he had submitted the price to the plaintiff. The defendant himself says the goods remained at Spader’s store, and that he could make a better sale of them there than in his own store. The plaintiff testified that the defendant was only his broker in selling any of these hops, and that he dealt with him as such merely. The defendant expressly repudiates ever having these goods on storage or having goods on storage at all, thereby himself denying that he ever had such possession of them as factors have. (5.) The plaintiff never intended to place any hops in Hannahs’ possession.
    2. Even with possession, the agent may sometimes be a mere broker. (1 Parsons on Cont. 84. Pickering v. Such, 13 East, 38.) A broker may be the agent for both parties, but a factor can only be the agent of the person who employs him. (1 Pars. on Cont. 84, and cases cited.) Hannahs had sold these goods before he got the order for either the 100 or 140 from the plaintiff, the sale was a cash sale, and they were actually set aside in Spader’s store at the time the order was presented, both, by the defendant and the purchaser, (Ryckman,) and actually marked by Ryckman, “ G.” The plaintiff says that the defendant, about the time the order was given for the 140 bales, actually canceled the policy óf insurance on the goods, supposing the purchaser would carry them away. If, after any of these things were done, and a complete delivery had been made to the purchaser, Hannahs exercised any control over the hops, it was as a broker and in the capacity of an agent for his friend the purchaser, of whom he testifies he was an agent.
    3. The defendant testifies that he never had any of the 140 bales of hops on storage; never had any charges against Thacher for them; never rendered him any bill for storage on them, and that it was not his business to store goods. If there were no charges against these hops, no general lien could grow out of them. A person not engaged in warehousing or storage as a business has no lien for his compensation for storage. (3 Hill, 491. 3 E. D. Smith, 267. 6 Abb. Dig. 73.) Hannahs was, in his transactions with Thacher, a mere broker, and as such had no lien whatever, either general or special.
    4. The defendant did not have such possession of the eighteen bales out of 100 first sold to Eyckman, which the defendant took from Spader’s to his own store, for the mere purpose of inspection, and which eighteen would not pass inspection, as to give him the character of a warehouseman, with respect to them. The defendant himself says: “ He did not take them on storage, and only happened to have them left at his store because the purchaser would not take them, and also that it was not his business to store goods. By thus expressly repudiating its being part of his business to store goods, as matter of law he could not have a lien on those •which he might, “as an accommodation or favor, store on any particular occasion.” (6 Bosw. 176. 3 Hill, 491. 6 Abb. Dig. 76.)
    5. A warehouseman has only a specific lien, not a general one. (2 Kent’s Com. 828, 8th ed. Story on Agency, § 353.)
    
      ITT. In no view of the case, then, had the defendant any lien or right to retain the sixteen bales of hops, for the recovery of which this action is brought.
    1. He cannot claim, and did not pretend to hold them by virtue of any specific lien ; for all charges, including what was called storage on these sixteen bales ($26.62,) were paid by the plaintiff before he brought this action. This, of course, discharged any specific lien, if any had existed. This, the defendant concedes, but claims to have had a right to hold the sixteen bales on the ground of a general lien, growing out of the transaction with reference to the nineteen bales, which were a part of the 140 bales, which Ryckman, had bought, September 14,1863, all at Spader’s store, except eighty. Only thirty-six bales of which would pass inspection, thereby leaving twenty-four bales at Spader’s store, rejected and still belonging to the plaintiff.
    2. On the 14th September, 1863, the defendant sold 140 bales for the plaintiff to Ryckman. On the 15th September, 1863, the plaintiff gave the defendant an order for them on Spader to enable him to deliver them to the purchaser. But the purchaser, on inspecting them at Spader’s store, would only accept 116 bales, rejecting twenty-four, which he left at Spader’s, where they remained on storage for the plaintiff. The defendant closed this transaction with the plaintiff, rendered his account on the 14th October, 1863, having on the 22d September, and on the 7th and 14th October paid the plaintiff, and told the plaintiff that he had got the money for them.
    This transaction being so closed on the 14th October, 1863, and the defendant having notified the plaintiff that the twenty-four bales were rejected, (of course remaining in Spader's store on storage for the plaintiff,) the plaintiff on the 16th of November, 1863, sold ten of these rejected bales, and gave his order on Spader for them, and on the 2d day of December, 1863, sold the remaining fourteen bales, and gave a like order for them. Those, orders were not for those marked Q, (which Ryckman had bought and so marked,) but for those rejected, marked T and H. Both the law and the custom of the trade gave the plaintiff the right to sell and draw on the warehouseman for these twenty-four rejected bales.
    3. It is now pretended .that the warehouseman made some mistake, and delivered on the plaintiff’s two orders for ten and fourteen bales, 19 out of the thirty-six, which Ryckman had bought, accepted, marked, set aside, and paid for, but which for his own convenience and advantage he permitted to remain for him with Spader. The defendant, about the 2d December, 1863, told the plaintiff, that all these thirty-six were then at Spader’s, marked Gr and a number, as set aside by Ryckman, but that Spader would not deliver them, and for his own accommodation requested the plaintiff to give an additional order for the thirty-six bales. The latter, finally, at the special request of the defendant, (who agreed that the plaintiff should incur no risk or responsibility,) drew the order for the thirty-six bales. The plaintiff having drawn an order for ten of the twenty-four rejected, on the 16th of November, 1863, which left fourteen to be drawn for, it would have been impossible for him to have got nineteen bales of any kind, on his order of December 2 for the residue (14) of the rejected bales. Spader thought the thirty-six bales were taken away from his store on the second or third of December, 1863, by Ryckman, and that nineteen of them were afterwards brought back. If Spader had made any mistake, it is sufficient answer- for the plaintiff that the latter did all in his power to rectify such mistake by affording every facility for that purpose.
    IY. The defendant had no claim against the plaintiff, growing out of the transaction with reference to the nineteen bales, much less any general lien by virtue thereof or right to retain the sixteen bales in suit.
    1. Because the thirty-six bales, of which the nineteen were a part having been accepted, marked, and even paid for, by Ryckman,' according to the testimony of Thacher, at latest before the 14th of October, 1863, they were the absolute property of Ryckman, and the defendant had nothing to do with them, at least, so far as the plaintiff was concerned. Any question about whether Spader had delivered some of them by mistake to any body else, was a question between him and Ryckman, for which the plaintiff was not accountable, and certainly gave the defendant no claim against the plaintiff, much less a right to retain other goods, on which he concedes all charges were paid.
    " 2. It was not possible that nineteen bales out of Byckman’s thirty-six bales were delivered on the plaintiff’s order for ten (of the rejected) on the 16th of November, 1863, or his order for fourteen (of the rejected) on the 2d December, 1863, for the defendant told the plaintiff that the whole thirty-six bales were there on the 2d December, 1863, and got a new order for them as “ a favor,” &c.
    3. In any case, the defendant guaranteed the plaintiff against any risk or responsibility with reference to those thirty-six bales.
    4 The defendant never was in possession of any of the 140 bales, of which the thirty-six, including the nineteen, were part. They were always at Spader’s store, and the storage paid for by the plaintiff, until Ryckman accepted them.
    5. Even if the defendant had a constructive possession of the 140 bales, or any part thereof, he parted with that possession when Ryckman accepted, marked and set aside the eighty and thirty-six bales, and even paid for them, at the latest, .before 14th October, 1863, according to the plaintiff’s testimony. Parting with possession relinquishes all lien, and right of lien, even if any ever existed, or even holding them for another. (Story on Agency, § 366. 2 Kent’s Com. 819, 7th ed.)
    
    6. The defendant, never having had possession of the thirty bales, or if he had a constructive possession, having parted with it, and having no charges against the sixteen bales in suit, could not retain 'these sixteen bales, on which he does not pretend to have any specific lien, on account of any alleged claim against the plaintiff with reference to the thirty-six or nineteen bales, on which he had no lien. Not having the special lien with reference to the nineteen or thirty-six bales, he cannot build the claim of a general lien upon them. There may be a special lien, without a general lien, but a general lien can never arise in reference to merchandise, on which there is no special lien. The greater may include the less, but the less cannot be made to include the greater.
    7. The transaction with reference to the- thirty-six bales or the nineteen bales of them, out of which the defendant asserts that a claim accrued to him against the plaintiff, (which is the mistake made by Spader in delivering the wrong goods to somebody, on some order, at some time,) was not a similar transaction to that in reference to the sixteen bales in suit. “If a lien (general) is claimed for a general balance of accounts, the debt must be a balance arising out of a transaction-similar to that upon which ‘the particular lien arises.” (Story on Agency, §§ 364, 365.) There is no similarity between the charges of $26.62, on the sixteen bales in suit, and the alleged claim growing out of some mistake made by Spader.
    8. If the defendant pretends that the plaintiff had any thing to do with any mistake, and was knowingly instrumental in the matter, then also no lien could arise, for the transaction would be quite dissimilar, for that with reference to the sixteen bales would be a tort. Ho lien exists with respect to torts. (Sturgis v. Slacum, 18 Pick. 36.)
    9. ' The defendant did not assign as his reason for not delivering the plaintiff the sixteen bales in suit, any claim of general lien, growing out of the alleged transaction as to the nineteen of the thirty-six bales, but on the contrary first told the plaintiff, when he demanded the sixteen bales, that he had sold them, and then that he had no hops belonging to the plaintiff, and the latter never heard of any difficulty about the nineteen bales until the suit was commenced. This of itself waives and forfeits all lien, if any ever existed. The proper cause of lien must be asserted at the time of demand, otherwise the lien is waived and the party cannot afterwards set it up as a defense in a replevin suit. (Winter v. Coit, et al. 7 N. Y. Rep. 288. Story on Agency, § —.)
    
      V. There was no proof or evidence of any custom or contract giving a lien, in transactions of the character of those between the plaintiff and the defendant.
    1. All general liens have their origin in the positive or implied agreement of the parties. (Story on Agency, §§ 354, 355, 375. 2 Kent’s Com. 826, 8th ed.) However custom may control the subject of lien between parties occupying the undisputed and usual character of consignor and factor, requiring no proof in the first instance of any custom or agreement, yet the relation existing between the plaintiff and defendant in this action, are so dissimilar from that existing between consignor and factor, that some proof of custom or agreement should have been required to establish the existence of a general lien which in itself the policy of the law disfavors.
    2. As in case of packers acting as factors, there is no general lien, unless there is positive or affirmative proof, produced by the party asserting the lien, of an agreement or custom implying an agreement to that effect. The burden of proof is on those who set up a general lien to establish it by clear and determinate evidence. (Story on Agency, § 384. Holderness v. Collinson, 7 Barn. & Cress. 212. 2 Bell’s Com. § 792, 4th ed.)
    
    VI. For the reasons above assigned, the case then should either have gone to the jury, or, upon the plaintiff’s testimony and the defendant’s admissions, the verdict should have been for the former. If any of the plaintiff’s material statements were contradicted, the case should have gone to the jury.
    VIL A new trial should be ordered for the additional reasons:
    1. The verdict should have been s.uch that the judgment would be in the alternative, allowing the plaintiff, in any case, to return the goods. (Dwight v. Enos, 9 N. Y. Rep. 470. Code, §§ 261, 277.) The clerk’s minutes must be taken as the legal and conclusive evidence of what the verdict was; for the law makes it his duty to enter the verdict, and therefore makes such entries the legal evidence of what the verdict was. (See Code, § 264.)
    
      2. Although an agent, in a proper case, has a lien, yet it is only to the extent of his alleged claim. He has no right to retain more property, when demanded by the principal, than is sufficient to satisfy it. (Jolly v. Blanchard, 1 Wash. Cir. R. 252, 255.) This doctrine is conceded in Fitzhugh v. Wiman, (9 N. Y. Rep. 559, 565.) In the case at bar, the defendant himself fixed his claim and lien at $657.97, (see defendant’s answers ;) the verdict was for $851.52.
    3. In no event can a counter-claim be allowed a defendant in an action for claim and delivery, for an alleged lien. (Gottler v. Babcock, 7 Abb. 392, n. De Leyer v. Michaels, 5 id. 203.)
    
      Eugene Smith, for the respondent, defendant.
    I. The defendant held the eighteen bales, mentioned in the complaint, in his possession, for the purpose of sale, as the plaintiff’s agent; this made him the plaintiff’s factor, and not a warehouseman ; nor, having actual possession, could he be a broker. (Russell on Factors and Brokers, 4. Story on Agency, § 34. Dunlop’s Paley on Agency, 14.)
    1. The defendant never received any hops on storage, as warehouseman, but only held them for sale on commission. He held those bales for the purpose of sale; but as the plaintiff desired him to surrender them before a sale had been effected, the defendant charged, as he was entitled to do, an item for “ storage.” That charge, made under such circumstances, could not transform the defendant from a factor into a warehouseman.
    2. The plaintiff admitted, that the defendant acted as his “ broker ” in reference to those bales, and held them as “ broker •” which means, that the defendant held them for the purpose of sale as the plaintiff’s agent, and not as a simple depositary or warehouseman.
    3. The plaintiff made a similar admission in accepting account of sale, and proceeds of sale of two of the said eighteen bales. He testified expressly that the defendant did not transgress his authority in selling said two bales.
    
      4. The defendant testified, explicitly, that he had possession of those bales for the purpose of sale on commission, for the plaintiff’s account; and this was uncontradicted.
    II. The defendant also acted as the plaintiff’s factor, in reference to the lot of thirty-six bales, and had constructive, if not actual, possession of the same.
    1. The plaintiff gave the defendant an unconditional order on Spader, the warehouseman, for the delivery to the defendant of these thirty-six bales (with others ;) which order the defendant immediately deposited with Spader. This vested the defendant with the possession of the hops. As a constructive possession, that was sufficient to support a lien. (Dows v. Rush, 28 Barb. 157. Dows v. Greene, 16 id. 72. S. C. 24 N. Y. Rep. 638. Holbrook v. Wright, 24 Wend. 169.) The defendant paid the storage on these thirty-six bales, and assumed all the risk—a proof of possession by him, and mark of distinction between a broker and a factor. (Dunlap’s Paley on Agency, 23 et seq. and cases there cited.)
    
    2. The defendant acted in his own name in all these transactions of sale, and his principal did not know the name of the purchasers—facts incompatible with the character of a broker. (Story on Agency, § 34. Russell on Factors and Brokers, 4. Dunlap’s Paley on Agency, 13.)
    3. The plaintiff admitted, by implication, that the defendant had possession of the thirty-six bales as his factor.
    He testified that he “ never intended to place any of the hops in the defendant’s possession.” Which was simply an expression of his opinion as to the legal effect of his action. But he added that he gave the defendant “ the order to deliver the hops as his factors to the purchaser.” 'Which meant that he gave the defendant possession of the hops to complete the purchase.
    4. But that possession thus given ipso facto made the defendant his factor. A broker is merely a negotiator between the parties, and does not have possession of the goods. (1 Parsons on Cont. 78, and authorities above cited.) The plaintiff, speaking of these thirty-six bales, declared to Spader that “ he had nothing more to do with them i. e. that they were in Hannahs’ possession. He also refused to pay the storage on them, saying that Hannahs would pay it. Thus he admitted that Hannahs had possession of the thirty-six bales. But the thirty-six were only a part of the 140, and Hannahs held the balance unsold of the 140 by precisely the same tenure as the thirty-six, viz. by virtue of the order.
    • III. The balance of account established in the defendant’s favor arose out of said thirty-six bales.
    1. The defendant having possession of the thirty-six bales, sold them to a purchaser, and paid in advance the full amount of such purchase to the plaintiff; but before the hops were delivered to the purchaser, the plaintiff took away nineteen bales of the thirty-six, without notifying the defendant. By so doing he became liable to the defendant for the value of the said nineteen bales which the defendant had already advanced to him. From this indebtedness arose a balance of account in the defendant’s favor, which will support a general lien. (Dunlap’s Paley on Agency, 127. Story on Agency, § 354, and cases there cited,.)
    
    
      2. The plaintiff, having placed the 140 bales (of which the thirty-six formed a part) in the defendant’s possession, and the defendant having made advances on them, had no right to take any of them away ; and in doing so, loithout notice, he acted at his peril. (Dows v. Greene, 16 Barb. 72.)
    3. This would have been the case, even had the plaintiff acted innocently in withdrawing the nineteen bales ; but after the difficulty had been fully explained to him, on December 2, 1863, he drew out fourteen of the bales upon order. (Warr v. Praed, cited in Russell on Factors and Brokers, 174.)
    IY. The defendant did not waive his lien by accepting the $26.62 in payment for storage of the eighteen bales, because at the time of such acceptance he insisted on his lien, and expressly stated to the plaintiff that he did not receive the money in full for all charges, but only on account.
    
    
      Y. There were no questions of fact to go to the jury. Whatever discrepancies appear in the testimony relate to immaterial issues.
    The following facts, which are the only essential ones in the case, are established by the evidence on both sides, or else are uncontradicted : 1. That the defendant held the eighteen bales mentioned in the complaint, for the purpose of sale on commission. 2. That the thirty-six bales (which were a part of the 140) were also placed at the defendant’s disposal for the purpose of sale on commission. 3. That the defendant having sold the thirty-six bales, paid the full amount of the purchase to the plaintiff before he had received it from the purchaser. 4. That before the thirty-six bales were delivered to such purchaser, the plaintiff took away and shipped to St. Louis nineteen of the said thirty-six bales, without any notice to the defendant.
    VI. The plaintiff having thus received from the defendant an advance of the value of the said nineteen bales, and taken also the bales themselves, became liable to. re-imburse to the defendant the amount of the value thus advanced.
    VII. This claim of the defendant, having arisen out of his employment as the plaintiff’s factor, entitled him to a general lien on the first mentioned eighteen bales which were in his possession as such factor.
    VIII. The verdict was correct. (Glann v. Younglove, 27 Barb. 480. People ex rel. Hanrahan v. Board of Police, 35 Barb. 648. Manning v. Monaghan, 23 N. Y. Rep. 543. 14 Abb. Pr. 185.)
    1. There is no conflict of evidence as to the value of the property. The only evidence upon this point is that of Mr. Eiege. The loose opinions of the plaintiff are clearly not evidence.
    2. The defendant is entitled to recover the full amount of the value of the property in dispute, (Dows v. Rush, 28 Barb. 157,) and the highest value between the commencement of the suit and the time of trial, (Romaine v. Van Allen, 26 N. Y. Rep. 309.)
    
      3. The court will draw, in support of the verdict, every inference from the evidence which a jury would have been justified in drawing. (Williams v. The Insurance Co. of N. A. 1 Hilt. 345.)
    
   By the Court,

Robertson, Oh. J.

Assuming that the nineteen bales of hops sold by the defendant and marked by the purchaser with a letter and numbers, were, after such purchase, in the constructive possession of the former or of such purchaser, although in the actual possession of the warehouseman, and were unlawfully converted by the plaintiff to his own use, I do not see how the defendant can have any lien for their value'. The admission of the defendant, on the stand as a witness, and the testimony of the plaintiff, conclusively show that neither party had the slightest idea that the money paid by the defendant to the plaintiff in rendering his account of sales, was such an advance as a factor may make to his principal on the faith of merchandise in his possession. It was the payment either of the sum due by the purchaser to the principal for the hops sold and delivered, or a discharge of the defendant’s liability as a del credere factor or for having sold contrary to instruction, which was to sell for cash. After that payment the plaintiff could have no right of action against either the defendant or the purchaser, for the price of the goods, nor . could the defendant have any right of action to recover back such sum from the plaintiff as money lent and advanced.

The attempt to convert an appropriation of the defendant’s or purchaser’s property by the plaintiff (if established) into any thing out of which a lien could arise on the sixteen bales in controversy, is still more far fetched. At most, the defendant could only elect to change such conversion into goods sold and delivered; and the sum due therefor could in no way be a mercantile advance by a factor to his principal. The. fact that the same property had originally belonged to the plaintiff was immaterial. It had been bought and paid for ; and the parties, so far as it was concerned, stood in the position of entire strangers. Ho presumption could arise from the customs or necessities of commerce, that if the plaintiff unlawfully possessed himself of the defendant’s property, the latter in exercising his right to elect to consider it a sale, could hold merchandise in his possession to be sold by him as factor of the plaintiff, as security for the payment of the value of such property. Torts are not ordinary transactions in trade and therefore not subjects of lien. (Sturgis v. Slacum, 18 Pick. 36.) Nor can the right of election which the law gives the party injured to convert a tort into a contract of sale be extended to create a lien for the money which would become due thereby upon goods held in pursuance of an ordinary commercial relation. I apprehend, that the doctrine of a factor’s lien for a general balance of account never went so far, as to embrace even the price of goods sold by a factor to his principal not connected with the general purposes of their relation as principal and agent.

The direction to find a verdict for the defendant was therefore erroneous; but a question arises as to the proper judgment to be rendered, owing to the case having been settled without the examination of the presiding judge. The clerk's minutes show that the exceptions in the case were ordered in the first instance to be heard at general term ; and not that the verdict was taken subject to the opinion of the court. The case containing the exceptions annexed to the record must be amended to conform to such minutes, and a new trial must be ordered on the present argument.  