
    FRANCIS C. CORMIER, et. al., Plaintiffs and Appellants, v. WILLIAM BATTY, Defendant and Respondent.
    I. TROVER.
    1. OOKVEBSIOS".
    («) Prima facie evidence of.
    
    1. Original tortious taking is ; this as against any one to whose possession the property may come.
    3. Demand and refusal is.
    Conclusive,—either of them is conclusive if nothing appears to avoid their effect.
    (6) Original tortious taking.
    
    1. Its effect as establishing a conversion will be avoided, when. (») Bona-fide purchaser. When the defendant is an innocent bona-fide purchaser, and received the property by delivery from Ms vendor.
    
    1. This is one case of avoidance.
    1. A bona fide purchase and, delivery must concur. If either element is wanting there is no avoidance.
    
    
      Q>) Bubtheh of pboof. It devolves on the defendant to show the facts constituting the avoidance.
    But,
    1. Even if it devolved on plaintiff to show that defendant was not a bona-fide purchaser, or did not receive the property by delivery, evidence that the property had been pointed out to defendant .as the plaintiff’s property, and that it was plainly marked so as to be readily identified ; that the sale to defendant was for a pre-existing indebtedness due him by a firm of which the plaintiff was a member; that at the time of the sale the property was lying on a beach ready for shipment, and was taken from there and loaded on a vessel by defendant’s orders, and under his direction, for his account is sufficient, it being uncontradieted, to establish—
    1. That defendant was not an innocent bona-fide purchaser.
    3, That he took and carried away the property without any actual delivery to him by the vendor.
    
      (c) Receiver appointed in another action.
    
    
      1. Taking possession by him of the property in question, effect of.
    1. Will not exonerate the defendant in the trover action from liability for the value of the property, if once liable therefor on a tortious taking.
    
      (a) This though the receiver was appointed in an action instituted by the plaintiff in the trover action, and at his instance, and though possession was taken by the receivers with the knowledge, and without objection on the part of said plaintiff, and though on defendant in the trover action giving security to account, the receivership was discharged, and the property delivered to such plaintiff.
    II. RES-ÁDJUDICATA.
    1. Where A. brings an action against B. and C. to dissolve a partnership existing between him and B., and to set aside a transfer of the firm property by B. to C., which transfer covered individual property of A. (it being claimed by B. to be a part of the firm property), and 0. in his answer insisted on the validity of all the transfers to him by B., including the one covering the individual property of A., and claimed that property as his own, and- insisted on his right to hold and use it ; and the record shows that the ownership of the property, and C.’s good faith in purchasing it, was both litigated and decided adversely to 0., such reeoi'd is competent evidence in an action of trover brought by A. against 0. to recover damages for the conversion of such individual property, both on the question of ownership and of good faith.
    
      (a) It operates as an estoppel upon Ods denying the ownership of A., and also from claiming that he was an innocent bonafide purchaser.
    
      Before Speir and Sanford, JJ.
    
      Decided March 20, 1876.
    Appeal from a judgment on a verdict for defendant, rendered by direction of the court.
    The cause was tried before the Chief Justice and a jury, October 6, 1875.
    The action was brought to recover damages for an alleged wrongful conversion of certain logs of red cedar and cedar bolts, the property of the plaintiffs. Defense, a general denial. It was conceded, on the argument, that the plaintiffs’ right of property and possession were adequately proved; but the defendant contended that there was no proof of a wrongful conversion. It appeared in evidence that the goods were brought by defendant from Cedar Keys to Hew York, and were there sold by him, and his liability to account to the plaintiffs, in a proper action, for the proceeds of such sale, is not controverted by his counsel. The plaintiffs contend that he is liable for the value of the goods, on the ground of a tortious taking and conversion of them.
    In April, 1872, the property in question, then in the actual possession of plaintiffs, as its owners, was lying on the beach at Cedar Keys, piled up and ready for shipment. A partnership then existed between plaintiffs and the defendant’s sons, its business being the purchase and sale of cedar wood and other merchandise, at Cedar Keys and in Hew York. The plaintiffs carried on the firm business in Hew York ; the defendant’s sons at Cedar Keys. Their father, the defendant, was a creditor of the firm. In the latter part of May, 1872, without the knowledge or assent of the plaintiffs, their copartners, the defendant’s sons made a sale and transfer of logs and other merchandise, the property of the firm, and also of these logs and bolts, the separate property of the plaintiffs, to the defendant, the consideration of such sale and tranfer being the pre-existing indebtedness from the firm to him. The defendant’s sons claimed that the property in question belonged to the firm, but such was not the fact. By direction of the defendant, the whole property thus purchased by him was laden on a schooner, and shipped to blew York. Before its arrival there, suit was instituted by plaintiffs against the defendant and his sons, in the supreme court, for a dissolution of the partnership, the avoidance of the transfer of firm property to defendant, and for other relief. A receiver was appointed in such suit, who, on the arrival of the schooner, with the knowledge of the plaintiffs and without objection on their part, took possession of the entire cargo, including the plaintiff’s logs and bolts, and caused it to be stored. The receivership was shortly afterwards discharged, on motion of defendant, upon his giving security to account, and the cargo, including the property nowin question, was restored to and immediately sold by him. The plaintiffs made no demand for the possession of the property w'hile it was in the possession of the receiver or afterwards, and it was sold with their knowledge, and without objection from them.
    
      Rodman & Adams, attorneys, and T. H. Rodman, of counsel for appellants, urged:
    I. Upon the whole case as it stood at the close, it was not for the court to direct the j ury that no wrongful conversion had been shown. The plaintiffs’ proof was all-sufficient to show an original tortious taking by the defendant, but there is more in the case. The plaintiffs have proved title to these one hundred and eighty-one logs, and an undisputed wrongful talking by the defendant’s sons, through whom he claims. It then lies upon the defendant to show affirmatively that he came to possession in perfect good faith for a lawful purpose. If goods be wrongfully taken by one party, he who subsequently comes into possession is deemed as much a wrongdoer as the original tortious taker, unless he affirmatively prove his bona-fldes, and without "such proof no demand need be shown (Tallman v. Turck, 26 Barb. 169 ; Barrett v. Warren, 3 Hill, 348 ; Pierce v. Van Dyke, 6 Id. 613 ; Ely v. Ehle, 3 N. Y. 506). The defendant here, to prove his bona-fldes, absents himself from the trial of the cause, and sends- his son Eugene to swear only to personal ignorance in the matter. The direction of the judge to the jury that no wrongful conversion had been shown was clear error.
    II. But the plaintiffs’ exception to the exclusion of the judgment roll in the suit of themselves as plaintiffs, and the defendant in this action as a defendant, is good. The defendant’s son Eugene had sworn that these one hundred and eighty-one logs had passed to this defendant by a sale made by his sons at Cedar Keys in May, 1872. This judgment roll contains the findings of the referee in the cause, that the sale was fraudulent, without consideration, made with the intent on the part of the defendant and his sons to cheat and defraud these plaintiffs. There is a further finding as to the plaintiffs’ title to the one hundred and eighty-one logs, and that they have never in any way parted with their title to the samé, or their right thereto. This is res judicata as to waiver up to the date of the referee’s report, July 10,1875. This record is not only evidence, but conclusive evidence as between the parties to this action upon the question of Plaintiffs’ title, the question of wrongful conversion, and the question of waiver. For its exclusion there must be a new trial.
    III. The defendant urges that by the acts or admissions of the plaintiffs in FTew York, subsequent to the arrival of the one hundred and eighty-one logs there, they have waived the tort of the defendant. The one hundred and eighty-one logs—one thousand eight hundred and eighty-two cubic feet—arrived in Hew York in July 1872. among a cargo of fifteen thousand feet, the whole being apparently the subject of the fraudulent sale which the sons had at Cedar Keys shade to their father in May previous. The plaintiffs immediately attacked this wholesale transfer of their partnership property, and July 16, 1872, had a receiver appointed of the same. The receiver’s appointment is exclusively confined to the partnership property. He, however, seems to have taken possession of the whole cargo, including the one hundred and eighty-one logs. This was a conversion by the receiver, for he had. no title and no right to these logs. His act gave the court no jurisdiction over the property. He placed the cargo in the yard of a wharfinger, as whose servants these plaintiffs conducted its reception into the yard. The plaintiffs acquired no possession of the wood. The possession was the wharfinger’s. August 3, 1872, the receiver, in spite of the plaintiff’s opposition, was discharged, and ordered to transfer back to this defendant the property taken possession of by him, the receiver, on said defendant’s filing security to account. This was. done, and the defendant received back the whole cargo, and sold it immediately. While this order, perhaps, in terms covers the whole cargo, this court will not pervert its sense and evident intent to protect this defendant against the consequences of his fraud. The action, in which the receiver had been appointed and this order made, exclusively concerned partnership property. The first order gave the receiver no right or title to the one hundred and eighty-one logs, and he therefore had no title or interest in them which the second order could divest. The property was not and could not "be before the court in that action. William Batty could not account in the partnership suit for the property, the subject of this action, which was not partnership property, and the referee in that suit when the defendant tried to account there so as to purge this fraud, struck the matter out. Again, the pleadings in the judgment roll show that these one hundred and eighty-one logs were not under consideration in the partnership suit, and they explain the order.
    IV. But all these considerations, even if held against the plaintiffs, will not avail the defendant. It is claimed that they operate as waiver, or estoppel against the plaintiffs. Wot so (Martin v. Angell, 7 Barb. 410 ; Dezell v. Odell, 3 Hill, 215 ; Sharpley v. Abbott, 42 N. Y. 448; Baker v. Union, &c., 43 Id. 289 ; Lawrence v. Brown, 5 Id. 394; Chatauque Co. Bank v. White, 6 Id. 236 ; Jewett v. Miller, 10 Id. 402 ; Brown v. Bowen, 30 Id. 541). Wo act of these plaintiffs, no fact shown on the record, has prejudiced their cause of action. Whenever a right of action has once vested in a man, it can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done (McKnight v. Dunlop, 5 N. Y. 544 ; Willoughby v. Backhouse, 4 Dowl. & Ryl. 539 ; Christianson v. Suiford, 19 Abb. 22 ; Heam v. Rogers, 9 B. & C. 577). After a wrongful taking and carrying away of property, the cause of action is complete and an offer to return the property is no defense, either full or partial, because the cause of action fs complete (Woodruff, J., Brewster v. Silence, 38 N. Y. 428 ; Bronson, J., Hamner v. Wilsey, 17 Wend. 93 ; Bronson, J., in Otis v. Jones, 21 Id. 396 ; Higgins v. Whitney, 24 Id. 380 ; see Otis v. Jones, 21 Id. 396). Even the return and acceptance by the owner of property tortiously tafeen does not bar the claim for damages. The return and acceptance only operates to mitigate the damages (Vosburgh v. Welsh, 11 Johns. 176). Grant, then, to the order discharging the receiver, and to the silence of the plaintiffs before the defendant, all the effect which the law allows, and the plaintiffs’ cause of action is still complete as on the day when the defendant wrongfully converted their property. There has been no satisfaction and no release.
    
      Edward L. Owens, attorney, and John E. Parsons, of counsel for respondent, urged:
    I. There was no error in dismissing the complaint. 1. In order to maintain their action the plaintiffs were bound to prove (1) ownership and right of possession, (2) the wrongful taking and conversion of the property. The plaintiffs proved the ownership, yet they entirely failed to prove the wrongful conversion of the property (Hill v. Covell, 1 Comst. 522; Whitney v. Slawson, 30 Barb. 276). 2. The evidence does not show that the defendant became wrongfully possessed of the property in Florida, but it does show that, with the knowledge of the plaintiffs, and without any objection on their part, the property had been transferred to the defendant, and by him shipped to Hew York. Defendant was, therefore, lawfully in possession, and until demand and refusal there was no conversion (Storm v. Livingston, 6 Johns. 43 ; Hall v. Robinson, 2 Comst. 293; Tripp v. Pulver, 2 Hun, 511). 3. To maintain tortious conversion, the defendant must have had knowledge that at the time of the transfer and shipment, the property belonged to plaintiffs ; there is no evidence of that fact. 4. But if the original, taking was tortious, still as the property upon its arrival was taken by the receiver appointed upon the application of the plaintiffs, and put in store with their assent, such tortious act was thereby condoned. Delivering to the receiver was not, under the circumstances, a conversion. 5. The defendant afterwards became lawfully possessed of the property under the order directing the receiver to deliver the same to him. Under these circumstances, to maintain conversion, it was necessary to prove demand and refusal to deliver the property. USTo such proof was given ; on the contrary, the proof shows affirmatively that there was no demand (See cases above cited).
    II. There was no error in excluding the judgment offered by the plaintiffs. 1. The judgment was in another and different suit wherein the parties were not the same as in this action, nor did it involve the same subject-matter. 2. ■ It was only admissible, if at all. to prove ownership to the property, and as that fact had been proved, and not controverted by the defendant, it was immaterial for that purpose. 3. It does not prove that the defendant knew that the property in question at the time of its transfer and shipment, belonged to the plaintiffs, and without such proof there was no tortious conversion. In order to make the judgment evidence, it should appear that this matter was in issue (Manny v. Harris, 2 Johns. 24 ; Campbell v. Butts, 3 Comst. 173; Farnham v. Hotchkiss, 2 Keyes, 10; People v. Johnson, 38 N. Y. 63). Inference or argument from this judgment will not be sufficient (Dunckle v. Wiles, 1 Ker. 420-430). 4. It did not disprove or tend to disprove, the plaintiffs’ proof that it was by order of the court that the defendant received the property after the receiver took possession of it on plaintiffs’ application. 5. But if it was in anyway admissible, still the plaintiffs were not injured by its exclusion ; it proved nothing pertinent to this case, and therefore this court should not reverse the judgment and order a new trial, because of its exclusion (Beebe v. Bull, 12 Wend. 504; Hayden v. Pulver, 2 Hill, 205; People v. Wiley, 3 Id. 194 ; Worrall v. Parmelee, 1 N. Y. 519; Vandervoort v. Gould, 36 Id. 629, 644; People v. Waterford Co., 2 Keyes, 327, 336).
   By the Court.—Sanford, J.

The verdict for defendants must have been directed on the hypothesis, that, notwithstanding plaintiffs’ right of property and possession, and the wrongful taking and conversion of their goods by defendant’s sons, there was proof of such lawful possession in the defendant himself, as to render proof of demand and refusal indispensable to the maintenance of the action. The rule is well-settled that until demand and refusal, trover will not lie against an innocent bona-fide purchaser from a wrongdoer (Barrett v. Warren, 3 Hill, 348). But when the plaintiff’s title and an original tortious taking appear, the burthen is cast upon a purchaser to show that he is free from fault, and came to the possession of the property in a lawful manner, for a lawful purpose, and in perfect good faith. If he knew, or had any reason to suspect or believe that he was dealing with one who acquired the property unlawfully, he may then be treated as a wrongdoer, without any demand by the true owner (Pierce v. Van Dyck, 6 Hill, 613). His own protection from being held liable as a tortious taker depends upon his entire innocence and perfect good faith. His innocence and good faith being proved, he would be protected from such liability, and could not be charged in trespass de bonis asportatis, though he would still be liable to the true owner, in trover, or replevin in the detinet, after demand and refusal (Ely v. Ehle, 3 N. Y. 506). In this case, it clearly appeared that the defendant’s sons sold or assumed to sell to defendant, without color of authority or right, the plaintiffs’ property, together with other wood and merchandise, of which they were lawfully in possession, and which belonged to a firm .composed of themselves and the plaintiffs, in consideration of a pre-existing indebtedness of such firm. It further appeared that the firm was formed in December, 1871; that the logs and bolts in question had been previously purchased and paid for by the plaintiffs ; that in February, 1872, they were lying on the beach at Cedar Keys, in the actual or constructive possession of the plaintiffs ; that, in that month, they were specifically pointed out to the defendant by one of the plaintiffs as their separate property, and that a conversation then occurred as to the disposition the plaintiffs proposed to make of them. One of the plaintiffs testifies that, in that month, he was one day walking on the beach at Cedar Keys with the defendant, where the logs were piled, and that the defendant then asked him whose wood it was. Witness replied that it belonged to F. and J. Cormier, the plaintiffs. The defendant asked what they were going to do with it, and was informed that as soon as a cheap freight could be had, the plaintiffs would ship it to New York. The property was susceptible of easy recognition and identification. It was plainly marked or branded with certain marks and letters, burned in with a steel stamp, viz., “F. & J. C.” in a diamond, “ C.” in a diamond, and “A. H. M.” Prior to their partnership with defendant’s sons, the plaintiff had used the brand “F. & J. C.” in a diamond, for a long time. The marks were generally placed on two sides of the logs, sometimes on three sides, and sometimes on both ends. These logs, with the other wood so purchased by defendant from his sons, were loaded “by his direction and for his account,” on board the schooner Sarah Cullen, and were brought to New York, where they were seen, and at once recognized and identified as their property, by the plaintiffs, before her cargo was discharged from the schooner.

This evidence, wholly uncontradicted, was, in my judgment, sufficient to raise a legal presumption against the good faith of the defendant in purchasing these logs from his sons, and put upon him the bur-then of showing, if he could, that he did not recognize them as those pointed out to him by one of the plaintiffs at Cedar Keys, and did not know them to be the property of the plaintiffs ; or, he might have contradicted the testimony as to the whole conversation. But, uncontradicted and unexplained, the proof in regard to this conversation seems to me sufficient to raise the presumption, and to sustain a finding, of bad faith, and of notice, and of unlawful possession on the part of the defendant. The defendant’s points concede that if, at the time of the transfer and shipment, defendant had knowledge that the logs belonged to plaintiff, the action for tortious conversion can be maintained, and such is doubtless the law.

Again, a mere sale by a wrongdoer, without actual delivery, is insufficient to exonerate the purchaser from liability as a tortious taker. Trespass de bonis asportatis will.lie against the purchaser from a wrongdoer, who himself takes and removes the goods from the wrongdoer’s possession. In this case, as in that of Ely v. Ehle, above cited, there is no proof that the defendant’s sons ever did any other act in respect to the plaintiffs’ logs, which as we have seen, were piled up together on the beach, ready for shipment, than to enter into an illegal and unauthorized contract with defendant for their sale ; they did not deliver the logs to him, or, at least, there is no evidence of such delivery. The only testimony in regard to the transaction is that of one of defendant’s sons, to the effect that there was a sale to defendant, in May, 1872, of cedar wood, and goods in the store at Cedar Keys : and that such sale embraced these logs and bolts. In the case last cited, it was held, under like circumstances, that the6facts warranted the inference that defendant himself took and carried away the property, by virtue of his contract of sale, without any actual delivery being made, and that by taking and removing it, he became a trespasser, and that his taking was tortious, the vendor having no power to sell. There is no proof in this case, that the plaintiffs’ logs were ever moved or stirred, from the time when the defendant first examined them, in the presence of one of the plaintiffs, until they were taken and removed by the defendant. They were then actually or constructively in the possession of the plaintiffs, lying on the beach, ready for shipment. There they remained, so far as appears by the case, until they were seized upon and removed by defendant. The schooner on which they were placed was loaded by his direction, and for his account, and there is not a particle of evidence that the defendant’s sons ever touched the logs, or interfered with them in any way, except by wrongfully .assuming to contract for their sale. Except as affected by the contract, the situs of the property remained unchanged.

Under these circumstances, the defendant was himself a tortious taker, and liable to be proceeded against as such, irrespective of a demand upon him for the return of the goods.

If once liable as a tortious taker, the subsequent taking of the property by a receiver, appointed in a suit instituted by plaintiffs, and on their application and its restoration to defendant, by order of court on his giving security, did not exonerate him from such liability. Had he returned the property to plaintiff, his legal liability for damages would not have been discharged. The wrongful conversion is the gist of the action. “ If A. take the horse of B. and ride him, and after deliver him to B., yet may B. maintain trover against A., for the riding was a conversion, and the re-delivery will not bar the action, although it will go in mitigation of damages ” (Countess of Rutland’s Case, cited, 1 Rol. Abr. 5, L. 1; Brewster v. Siliman, 38 N. Y. 428). Had the defendant offered to return the goods, or tendered them, it was optional with the plaintiff to refuse or receive them, and he might have recovered their value.

The record offered in evidence by the plaintiffs and excluded by the court, shows a former adjudication by the supreme court, in a suit to which plaintiffs and defendant were parties, both with respect to the title of the property now in controversy, and with respect to the defendant’s innocence and good faith, in making the purchase from his sons, under which he here claims to have acquired lawful possession of the plaintiffs’ logs. Those logs were embraced in that purchase ; and the question of their ownership, and that of the defendant’s good faith, in making the purchase, were both litigated in that suit, and, as appears by the record, were both determined in it adversely to the defendant. The record was therefore competent and material evidence upon both of these points. It was insisted, on the argument,- that it was, at most, only competent as showing plaintiffs’ ownership, and that this was immaterial, as the fact had already been adequately proved, and had not been rebutted. But evidence is not immaterial because it is cumulative ; and I deem the question of defendant’s good faith, in making the purchase which he invokes to shield him from the imputation of having tortiously taken the plaintiffs’ property, of essential materiality. That purchase was adjudged by the supreme court to have been made in bad faith, and to have been wholly fraudulent and void against the plaintiff, both with respect to the partnership property, and to the separate property of the plaintiffs now in question. In his answer, in that suit, the defendant claimed as his own the whole cargo of the Sarah Cullen, and insisted that he had a right to hold and retain it. He insisted on the validity of all transfers made to him by his sons. The court adjudged the property now in suit to be the property of the plaintiff, and held, that the sale to the defendant in which it was embraced was fraudulently made, and with intent upon the part of the defendant and his sons to cheat and defraud the plaintiffs. Such an adjudication operates as an estoppel, and no principle has been suggested, upon which its inadmissibility, as evidence against the defendant, can be properly asserted.

The judgment should be reversed with costs.

Speir, J., concurred.  