
    [No. 6219.
    Decided September 11, 1906.]
    Alexander Herman, Appellant, v. Northern Pacific Railway Company, Respondent.
    
    Trover and Conversion — Right oe Action — Right to Property. When stolen property was taken from the person of the accused who gave the police officers an order to deliver the same to his attorney, but the same came into the posssession of the prosecutor to whom it belonged, the prosecutor is not liable for a conversion thereof by reason of the fact that, in order to obtain possession, the prosecutor entered into an agreement with the attorney to deliver the same to him at the end of the trial, but thereafter refused to do so; since the attorney had no right to the property, and there was no consideration for the agreement.
    Appeal from a judgment of thie superior court for Spokane county, Huneke, J., entered March 20, 1906, in favor of the defendant, after a trial on the merits before* the court without a jury, in an action for conversion.
    Affirmed.
    
      Danson & Williams, for appellant.
    
      Edward J. Cannon, for respondent.
    
      
       Reported in 86 Pac. 1068.
    
   Dunbar, J.

In the month of July, 1901, one George F. Hammond was arrested in Spokane, charged with bringing into the state stolen property. At the time of his arrest there was taken from his* possession $600 in* money, a diamond ring, a pair of field glasses, a watch chain and compass, and two large revolvers with scabbards. The value of this propr erty is alleged to have been $815. Immediately after his arrest he employed one George M. Netheroutt as his attorney, and for the purpose of paying Nether cutt gave him an order on the acting chief of police of Spokane for the property above described. In the month of June, prior to said arrest^ one of the Northern Pacific Railway Company’s trains had been held up by robbers at Bearmouth, Montana, and the express car blown open and certain valuables stolen therefrom. At the time of Hammond’s arrest, one Palmer, superintendent of the respondent company, and one McF'etridge were in Spokane*, attempting to locate the robbers and the stolen property, and it was thought that Hammond was one of the robbers, and he was arrested by the police of Spokane at the suggestion of the agents of the Northern Pacific Railway Company, and one of its detectives. After the arrest, Palmer and McFefridge desired to get possession of the property that had been taken from the possession of Hammond for evidentiary purposes, to be used in the trial of Hammond in Montana on the charge of train robbery, and the chief of police, refusing to turn over the property to them without the consent of the attorney, the following agreement was entered into with said attorney:

“It is hereby agreed that we will immediately after the final trial of George F. Hammond, on the charge of train robbery, at Bearmouth, Montana, tnrn over to George M. Hethercutt all property now held by the officers, as the property of said George F. Hammond, including $600 in money, excepting 18 unset diamonds, excepting diamond ring, providing same is identified.” (Signed by Palmer and MoFetridge.)

The property described in the agreement was delivered to Palmer pursuant thereto, and taken out of the state of Washington and has never been returned, although demand therefor has been madei. After the making of the contract above, Kethexcutt conveyed in writing to appellant his right under said contract. Hpon the refusal of the respondent to return the property, this action was brought for conversion, based upon the agreement. Judgment was rendered in favor of the plaintiff, the appellant here^ for $50. This represented the value of the property which was not identified as the property of the railroad company.

There are several assignments of error in this case, hut, as we view the law, it is not necessary to discuss them specifically. The main contention of the appellant is that the company rendered itself responsible for the return of the property by reason of the agreement above set forth'. The cause of action is founded upon Hammond’s ownership of the property and the sale of it to Hethereutt, and the sale by Uethercutt to appellant. This agreement, it seems to ns, was without consideration. Hethereutt had no right to detmand such an agreement of the owner of the property. The property was not even in the possession of Hethercutt, but was property that was in the custody of the law; and nowhere does it appear in the trial of the cause that the property ever was the property of Hammond, hut it does appear that it was the proplerty of the respondent or property which was rightfully in its custody and control. That appearing upon the trial, Uethercutt or his assignee could not he injured, because the only injury to them must of necessity result from the fact presumed of ownership in Hammond. There can be no equities in favor of the appellant in this case, for Hethercutt was counsel for Hammond who was defending against the charge of bringing this identical stolen property into the state. These were facts sufficient to put Hethereutt on inquiry as to the rights of the true owner and as to the fact of whether or not Hammond was the owner of the property, and being in a confidential relation with the thief, he must be presumed to have known the actual facts. Again, the prop erty being conceded to be the property of the respondent, it could recover it, even if it had been returned under the agreement. So that, it would be an idle thing to reverse this case where the reversal could only end in litigation which, in its ultimate result, would amount to that which is brought about by the judgment appealed from.

The judgment is affirmed.

Mount, C. J., Hoot, Crow, Hudkin, Fullerton, and Hadley, JJ., concur.  