
    Ingersoll and Another v. Emmerson.
    
      Wednesday, May 31.
    If the plaintiff, in an action of replevin, sliow a prima facie right to the possession of the property, the verdict should be in his favor, unless the defendant prove a better title.
    If the bailee of goods for a particular purpose, not having the indicia of property other than its possession and control, transfers them, in contravention of such purpose, to a bona fide purchaser without notice, the latter cannot resist the claim of the real owner.
    APPEAL from the Allen Circuit Court.
   Smith, J. —

This was an action of replevin brought by the appellants against the appellee for a canal boat. Pleas — 1st., non cepit; 2d, non detinet; 3d, property in the defendant; 4th, 5th, and 6th, property in other persons.

There was a trial by jury which resulted in a verdict for the defendant. Motion for a new trial overruled, and judgment de retorno.

The testimony is set out in a bill of exceptions. It appears that, on the 31st of December, 1842, Ambrose S. Holliday and John T. Holliday, trading as a firm styled John T. Holliday and Co., were the owners of the canal boat, Transit, then lying in the harbor at Cleveland, Ohio, and mortgaged it to Ingersoll and Douche, to secure the payment of six drafts, drawn by M. R. Holliday and Co., upon John T. Holliday and Co., and accepted by the latter firm. The drafts were dated in September, 1842, and payable at different periods. It was stipulated in the mortgage that the said Ingersoll and Douche should take possession of the boat whenever they should deem it necessary for then’ security, and hold the same until the drafts should be fully paid.

The drafts had been placed in the hands of Andrews, Foot, and Hoyt, attorneys at Cleveland, for collection. The mortgage was executed at the office of the said attorneys. Mr. Hoyt, one of the last mentioned firm, who was a witness at the trial, stated that the boat remained in the harbor of Cleveland, during the winter and spring of 1842-’ 43; that he and his said partners kept possession and control of her, and, on the 10th of May, 1843, they permitted Gideon Holliday, who was a brother of John T. Holliday, to run the boat, as captain, for the season of 1843, they taking from him a memorandum, in writing, in which, after reciting that whereas said Ingersoll and Douche ■ held a mortgage on said boat to secure the payment of certain debts, and whereas he, the said Gideon, was master of said boat, and proposed to run her during the said season, he certified that he held said boat under said Ingersoll and Douche, and agreed to pay to them all her earnings over and above her expenses, to be applied towards the payment of said debts. The memorandum also stated, that said Ingersoll and Bouche were not to be liable for any loss, damages, or expenses, connected with the running of the boat, with which they were in no wise concerned, except by having the right to determine the possession of the said Gideon., and to receive the net earnings.

Mr. Hoyt also stated, that it was understood, at the time of the execution of the above mentioned memorandum, that the boat was to be run on the Ohio canal; but a few days after he found, upon inquiry, that said boat, without his knowledge, or that of his co-partners, had been taken to Toledo, to be run on the Wabash and Erie canal. On receiving this intelligence, he remonstrated with John T. Holliday against the course which had been taken in removing the boat, and was assured by the latter that said boat should continue, in all respects, under the control of Ingersoll and Bouche, and that said Gideon would faithfully account to them, after every trip, for her earnings.

This suit was commenced on the 10th of October, 1844. The boat was then at Lafayette, in this state, in the possession of the defendant, of whom a demand had been made, but who had refused to deliver her to the plaintiffs. But a small part of the mortgage debt had been paid.

The plaintiffs having closed their testimony, the defendant introduced some evidence to prove that Gideon Holliday sold the boat in the spring of 1844, to John Hains, who sold her to Thomas Hains, who sold her to the defendant.

Some instructions were given by the Court which were-complained of, and some evidence was admitted which was objected to, but we shall not examine the questions thus raised, as we are satisfied, from the whole of the testimony introduced, that the plaintiffs should have had a new trial. Having shown a prima facie right to the possession of the boat, the verdict should have been in their favor, unless the defendant proved that he had a better title. This he certainly failed to do. Gideon Holliday appears to have come into the possession of the boat through the plaintiffs as their bailee. As such he had no authority to sell, and a title derived through him was wholly worthless. If a bailee of goods for a particular purpose transfers them, in contravention of such purpose, even although it be to a bona fide vendee without notice, the latter cannot resist the claim of the owner. Kitchell v. Vanador, 1 Blackf. 356. — Story on Bailments, 79. There may be, it is true, exceptions to this general rule. Thus it is said in Dryer v. Pearson, 3 B. & C. 42, that if the real owner of goods suffer another to. have possession of his property and of those documents which are the indicia of property, and thus enable such other to hold himself out to the world as having both the possession and ownership, then, perhaps, a sale by - such person would bind the true owner. But this was in a case quite different from that now under consideration. Gideon Holliday is not shown to have had any other indicia of ownership, than the mere possession and control of the boat as master, and that is not sufficient to bring the case within such an exception.

YY. H. Coombcs, for the appellants.

D. II. Colerich and /. G. Walpole, for the appellee.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  