
    Cobb against Dows and others.
    The plaintiff was the owner of wheat stored with W. & Co., warehousemen, in store No. 12, who also had in store, in the adjoining store No. 11, wheat consigned by the defendants C. & B. to the defendants D. & G., for which the latter, who were commission merchants, held the warehousemen’s receipt, specifying the building in which it was stored. D. & G. having sold the plaintiff’s wheat, gave the purchaser an order therefor upon the warehouse-men, directing its delivery from store No. 12. The warehousemen delivered the wheat of the plaintiff from No. 11, as in compliance with this order, and D. & G. received payment from the purchaser, and accounted therefor to C. & B., before notice of the error: Held, that all the defendants were liable to the plaintiff for the price of his wheat, as for money had and received to his use.
    
      The defendants having availed themselves of the aets of the warehousemen to obtain the money from the vendees of the wheat, cannot repudiate, as not performed under their authority, the warehousemen’s delivery of wheat not specified in their order, or remit the plaintiff to an action against the vendee or warehousemen as for a tortious taking of the property.
    Appeal from the Supreme Court. The complaint averred that the plaintiff, being the owner of three thousand five hundred bushels of wheat stored in the Atlantic Dock storehouses at Brooklyn, the defendants, Dows & Guiteau, without his consent, took therefrom two thousand and three bushels as the property of Church & Ball, the other defendants, for whom they were agents and commission merchants, and sold it for $2,924, which they paid to Church & Ball. The demand of judgment was general against all the defendants. The cause was tried before a referee, who found these facts: In January, 1848, the plaintiff, Cobb, had the title to four thousand seven hundred and nineteen bushels of Genesee wheat, stored with John Wight & Co., storehousemen, in loft 1 of building No. 11, of the Atlantic Dock Buildings, and held the receipt of John Wight & Co., stating these facts. Dows & Guiteau were partners, commission merchants doing business in New York city. They received on consignment, from Church & Ball, in November, 1S47, five thousand and fifty-one bushels of Genesee wheat, which they stored with John Wight & Co. (under the instructions of Church & Ball), and were furnished with the receipt of John Wight & Co., stating it to be in store No. 12, loft 2, Atlantic Dock Buildings. A part of this wheat was in fact stored in store No. 11, loft 1, but none of the defendants had any knowledge or suspicion of the fact until after the transactions on which the plaintiff founded his claim. Dows & Guiteau having sold and delivered, previous to the 8th May, 1848,"all the wheat of Church & Ball consigned to them, except three thousand and thirty-seven bushels, on the day last mentioned contracted to sell the residue to Howes, Godfrey & Co., and gave them an order on John Wight & Co., to deliver them that precise quantity “ from No. 12 Atlantic Dock.”
    On presenting this order, the measurer delivered to Howes, Godfrey & Co. one thousand and thirty-four bushels of the wheat of Church & Ball, from loft 2 of store No. 12. He was then told by those engaged in measuring with him that there was no more wheat in store No. 12, and then, by order of John Wight, he measured from loft No. 1, of store No. 11, two thousand and three bushels of wheat to fill the order, and which was the wheat belonging to the plaintiff, Cobb. Neither of the defendants was present when the wheat was delivered to Howes, Godfrey & Co. The portion of Church & Ball’s wheat that had been put in No. 11, had been, prior to May 8, 1848, taken away without the knowledge or authority of either of the defendants, and Church & Ball had then no wheat in store in the Atlantic Dock Buildings, except the one thousand and thirty-four bushels delivered from the second loft of store No. 12. Howes, Godfrey & Co. paid Dows & Guiteau for the wheat, and the latter accounted and paid over the money to Church & Ball before any of them had notice that any of the wheat taken belonged to Cobb.
    The referee reported in favor of the plaintiff who had judgment, which being on appeal reversed at general term in the second district, the plaintiff appealed to this court.
    The opinion of the supreme court was delivered by
    Brown, J. It is established by the proof, that some five thousand bushels of the wheat of the defendants was in store with John Wight & Co., in the building No. 12 Atlantic Dock, and that at the time the defendants, Dows and Guiteau, made the sale to Howes, Godfrey & Co., and drew the order upon John Wight & Co. for the three thousand and thirty-seven and thirty-eight-sixtieths bushels, they were entitled to that quantity from building No 12. The sale, therefore, was a sale of the wheat of the defendants, and
    
      not of the plaintiffs, and the order was to deliver wheat from No. 12, and not from No. 11. In the sale and the giving of the order, there was no attempt to dispose of, or exercise any control over the wheat of the plaintiffs. A portion of the wheat to fill the order was taken from building No. 11, by direction of John Wight, and not by the direction or authority of the defendants; and there is no evidence that either of the defendants, knew that the wheat delivered to Howes, Godfrey & Co. had not been taken from No. 12, until the money was paid by them to Dows & Guiteau, and by them paid over to their principals, Church & Ball.
    The complaint charges that the defendants, Dows & Guiteau, without the authority or consent of the plaintiffs, took the wheat of the plaintiffs from the public stores, as the property of Church & Ball, and sold the same, and paid over the proceeds of the sales to Church & Ball, without the authority, knowledge1 or assent of the plaintiffs. It is a rule of the common law,, that a man cannot be divested' of his property without his consent. There are some exceptions, but the present case is- not one of them. Possession does not carry with it the evidence of property, so as to protect a person acquiring it by purchase in good faith, and in the usual course of trade; except when the property is cash, bank bills and bills payable to beawer. The plaintiff has not parted with his property in the wheat stored in building No. 11, and his right to repossess himself of it whereyer he may find it, or to recover its value from those who took it, or into whose hands it may have come, is clear and unquestionable. The question here is, whether he can recover from the defendants. To maintain the charge contained in the complaint, he must do something more than establish his right of property. He must show that it was taken by the defendants, or that they have done some other act which in law will amount to a conversion. The proof need not show a tortious taking, or that the defendants acted in bad faith. If it should appear that they obtained the goods fairly, from a person whom they had reason to think was the true owner, or if they, had acted under a mistake as to the plaintiff’s title, or under an honest but mistaken belief that the property was their own, they would still be liable to the plaintiff if their acts in regard to it amount to a conversion. If they have taken it into their own hands, or disposed of it to others, or exercised any dominion over it whatever, they are guilty of the conversion and their liability to the plaintiff is established. In the cases cited by the plaintiff upon the argument, the defendants were charged with the conversion upon this principle. In Perkins v. Smith (1 Wilson, 328), the defendant was the servant of the plaintiff, and disposed of the goods. In Everett v. Coffin and Cartwright (6 Wend., 603), the defendant received the goods from the master of the vessel with whom they were shipped.by his direction, who sold them in ignorance of the rights of the true owner. In Williams and Chaffin v. Merle (11 Wend., 80), the defendant was á produce broker, and purchased and took the goods into his possession in good faith, for a valuable consideration, from a clerk who had no authority to sell. In Sallus v. Everett (20 Wend., 267), decided in the court of errors, Saltus, the defendant below, purchased the lead in question from Coffin and Cartwright, the defendants in the case reported in 6 Wendell, 603. In Hoffman v. Carrow (22 Wend., 285), the defendant, an auctioneer, sold the goods which were stolen, and paid over the proceeds without notice of the felony. And in Covell v. Hill and- Sanford (4 Denio, 323), the lumber in dispute was delivered into the hands of the defendants. The authorities all proceed upon the ground that the goods have been actually or constructively in the possession of the defendant in the action, or that he has interfered with them himself, or that others have done so by his direction. In the present case, there is the entire absence of evidence to establish anything of the kind. The order given by the defendants was explicit in its directions to deliver from building No. 12. It indicates all the defendants had done, and all they meant to do. It could not be misunderstood by those to whom it was given, or those to whom it was directed; and to construe it into an authority to deliver wheat from No. 11, or any other place, would be 'to abuse and pervert the uses of written language. John Wight & Co. were not the agents of the defendants, in the service for which the plaintiff contends. Their power was limited to the delivery of wheat from building No. 12; and if the delivery from building No. 11, in violation of the injunctions of the order, could charge the defendants with the conversion, then the defendants would be equally chargeable if the wheat had been taken from any other store, or from any other place, no matter where. No rational system of jurisprudence could entertain such a rule. The acts of the defendants in regard to the delivery of the property, do ¡not, therefore, make out the conversion.
    Did the defendants, by receiving into their own hands ■payment for the wheat delivered, approve and confirm the .delivery from building No. 11, so as to make this act of John Wight their own. It will be remembered that they were entitled to have delivered to their order from the building No. 12, the quantity of wheat sold to Howes, Godfrey & Co., and therein mentioned, and that the order was in part filled from No. 12. The conduct of the defendants must he such ,as to signify, unequivocally, that they recognized and approved of the taking from building No. 11. A portion of ¡the .wheat was, in fact, delivered from building No. 12, in conformity with the directions of the order; and for this quantity the defendants were entitled to receive payment from Howes, Godfrey & Co. In the absence of knowledge that their orders had been disobeyed, some intimation of the wrong .that had been committed, or some notice that the money was not all the proceeds'of their own property, the mere act of receiving the money cannot be regarded as a confirmation of what had been done at building No. 11. Had .the wheat of the.plaintiffs, upon that delivery, come to the possession of the defendants, then, however innocent they might have been of any design to commit a wrong, or to signify their approbation of a wrong committed by others, and however ignorant they might have been of the taking from No. 11, still they would be liable to the plaintiffs upon the authority of the cases cited. But the property never came to their hands; it has not been taken by their directions : and when the money was paid over, they had no notice that a portion of the wheat had been taken from building No. 11, or that the money was in paymept of any other property than that in store at building No. 12. The defendants could not ratify and adopt as their own that of which they had no knowledge. When the agent exceeds' his authority, no act of the principal will be construed into a ratification, unless it be done with a full knowledge of the facts and circumstances. (Story on Agency, § 253, and cases cited in the notes; 4 Bing., 722; 22 Wend., 324.)
    The plaintiff intimates in his third point, that the defendants are liable to him for money had and received to his use. To entitle the plaintiff to recover upon this ground, he must show that the money which he claims is his money. The action for money had and received, applies to almost every case where a person has received money, which in equity and good conscience he should refund to the true owner. It lies where one has had and received money belonging to another, without any valuable consideration given on the receiver’s part; for the law construes this to be money hnd and received for the use of the owner only, and implies that the person so receiving promised and undertook to account for it to the true proprietor. (3 Bl. Com., 163.)
    The rule, however, is subject to some limitations, and it is not in every case where one man has money which another ought to have, that the action for money had and received will lie. (3 Bos. & Pul., 169.) Where the defendant tortiously takes the plaintiff’s goods and sells them; this action lies. (Chitty on Cont., 3 ed., 607, note G.) And when the goods were taken by others, and the defendant subsequently received and sold them and received the avails, the action was also held to lie. (2 Hall, 53.) But in these cases, the taking or the receiving of the property so as to constitute a conversion, were as essential to the plaintiff’s recovery, as the sale and receipt of the money. And I apprehend that, unless the facts were such as to enable the plaintiff to maintain his action of trover for the goods, he could not recover. There is, however, this other obstacle in the way of the plaintiff’s claim.for money had and received, in this action. The complaint is framed to recover the value of the property upon the ground of unlawful conversion. It does not charge that the defendants have received money to or for the use of the plaintiff. The claim for the unlawful conversion is founded upon tort; that for money had and received upon contract. They are distinct causes of action, and could not be joined in the same suit. (Code of Procedure, § 167.) Indeed the plaintiff has not attempted to unite them; for the complaint, although it sets out a part of the evidence in the cause, proceeds exclusively upon the unlawful conversion.
    I am of opinion that the report of the referee should be set aside, and judgment should be entered for the defendants, with costs.
    
      Daniel Lord for the appellant.
    
      Edward Sandford, for the respondents,
    made these points in addition to those noticed in the preceding opinion :
    I. If the plaintiff has a claim against any persons other than J. Wight & Co., it is against Howes, Godfrey & Co. They took his wheat, carried it away, and converted it to their own use. Their acts bring them within the principle of the cases relied upon by the plaintiff—that where personal property is wrongfully converted, even by mistake, and without knowledge of the wrong, the persons who so convert it are liable in trespass or trover to the owner. If the conversion consist in. making a sale of the property, the owner had an election to waive the tort and to sue the tort feasor for-the-proceeds. (Hoffman v. Carrow, 22 Wend., 306, 307.)
    II. Upon the facts stated, the plaintiff has never parted with the title to his wheat, and has a perfect right of action against Wight & Co., who took it, and Howes, Godfrey & Co., who received it and converted it. The money which the defendants received was paid upon a valid contract on their part to deliver to Howes, Godfrey & Co. a specific quantity of wheat. It turns out that they did not deliver it; that Wight & Co. committed a willful and unauthorized trespass upon the plaintiff, by taking, his wheat, without color of authority from the- defendants, and by .means of that fraud, induced Howes, Godfrey & Co. to suppose that the defendants had executed their contract. They paid their money under the mistake thus induced, and any right of action founded upon the receipt of this money, was and is vested in Howes, Godfrey & Co., and not in the plaintiff. (Cary v. Curtis, 3 How. S. C. R., 236, 251.)
    III. It "being conceded that no new facts could be found, and it being clear, as a matter of law, upon the case, that the plaintiff could not recover in this action, the supreme court properly ordered judgment for the defendants. (Wilson v. Martin, 1 Denio, 602, 605.)
    IV. The case presented to this court presents the mere evidence before the referee, and not the conclusions of fact drawn from that evidence by the court of original jurisdiction, and this court will not pass upon it. (Esterly v. Cole, 3 Comst., 502, 505.)
    V. The judgment of the supreme court should be affirmed, with costs.
   Gardiner, J.

According to the facts found by the referee, all the defendants were interested in the wheat stored with Wight & Co. Church & Ball, as general owners, and Dows & Guiteau, as commission merchants, with a lien for their advances and commissions. The more important question in the cause will be, whether Wight & Co., the warehouse-men, in the delivery of the property which has given rise to this controversy, acted as the agents of the defendants, or of Howes, Godfrey & Co., their vendees.

The facts are, that Dows & Guiteau, on the 2d of May, 1848, contracted to sell to Howes, Godfrey & Co. three thousand and thirty-seven thirty-eight-sixtieths bushels of Genesee wheat at $1.46 per bushel. On the eighth of that month they gave to the vendees the following order:

“Messrs. J. Wight & Co.,
“ Please deliver Messrs. Howes, Godfrey & Co. three thousand and thirty-seven thirty-eight-sixtieths bushels of Genesee wheat, from No. 12 Atlantic Dock.”

At the time of delivery of this order, Dows & Guiteau supposed that the precise quantity of Church & Ball’s wheat named in the order, was then on storage in store No. 12, above mentioned. Under this order, as the referee reports, there was delivered to the agent of the vendees, about one thousand bushels of the wheat of Church & Ball, from loft 2, of store 12, which was all that remained in the possession of the warehousemen, and the measurer was then directed by Wight to measure from loft 1, of store No. 11, at the same buildings, sufficient to fill the order. This wheat was the property of the plaintiff. Messrs. Godfrey & Co. paid Dows & Guiteau for the quantity of wheat received by them under the order, and the latter accounted with Church & Ball, their principals, before notice that the plaintiff’s wheat had been taken.

The question of agency above suggested, it seems to me, is determined by a simple statement of the facts. Dows & Guiteau had contracted to sell, and of course to deliver, a quantity of wheat. This obligation they assumed to discharge by the order in question, upon their warehousemen. Wight '& Co. received the order, assumed to act under it, and consummated the contract of their principals, by the delivery of the quantity prescribed, which was accepted by the vendees in satisfaction and discharge of the engagement of the vendors. Nor is this all. The vendors subsequently recognized the acts of the warehousemen, as performed for their benefit, by receiving the stipulated price for the wheat delivered, as for property sold by them, to Howes, Grodfrey & Co., and by retaining the money after notice that the wheat taken was in fact the property of the plaintiff. It is true that the defendants supposed that all their wheat was stored in No. 12, and that the quantity there remaining was sufficient to satisfy their contract. They were mistaken, however, in both particulars. The order which they gave under a misapprehension as to the facts, was a direction to a depositary employed by them, for his government, and not for the government of the vendees. The whole duty of the latter was discharged when they delivered the writing to the warehousemen, at their place of business, and he received from them the kind and quantity of property therein specified. They were under no obligation to the defendants to ascertain whether their wheat was in one bin or another. It was the business of the vendors to deliver, and consequently to designate the property. This duty they undertook to perform by an agent. They have availed themselves of his acts to obtain the money of the vendees, and a discharge from their contract, and now seek to repudiate so much of the agency as will enable them to keep the money and defeat this action. This they cannot do. It is established law, that an innocent principal cannot take an advantage resulting from the fraud of one ostensibly acting as his agent, without rendering himself liable, civilly, to the injured party. (Olmstead v. Houghtaling, 1 Hill, 318; Irving v. Motley, 7 Bing., 543.) The case from Bingham cannot, in principle, be distinguished from the present. There one Dunn had been the purchasing agent of Wellington & Co. He was also employed by the defendants to obtain security by a pledge of wool, the property of Wellington & Co. He exceeded his authority, and made a fraudulent purchase in the name of that firm, of which his principals (the defendants) were ignorant. Tin-cad, Ch. J., remarked, “ that the jury acquitted the defendants of fraud, yet they involved them in the legal consequences, as it was a fraud committed by their agent with a view to benefit them.” So here, Wight & Co. were the agents of the defendants, to make delivery of the wheat sold to Howes, Godfrey & Co. The taking of the wheat from No. 11, instead of 12, was an act done under color of their agency, with a view to benefit their principals, by enabling them to fulfill their contract. The defendants received the price of the wheat, as the pledgees did the goods in the case cited, without knowledge of the fraud, and the one retained the goods, and the others proposed to retain the money obtained by the misfeasance of their agents.

It is said, however, that the defendants are not jointly liable for money had and received since Dows & Guiteau had accounted with Church & Ball for the price of the wheat before notice of the misconduct of the warehousemen. The answe.r to this objection has already been intimated. All the defendants were interested in the sale made to Howes, Godfrey & Co., although the contract was in the names of Dows & Guiteau. The money was received on the account of all, and subsequently distributed according to their respective interests: Dows & Guiteau retaining so much as would reimburse their advances, charges and commissions; Church & Ball receiving the residue. It is enough that the defendants received the money for their joint account. The proportions to which they were, as between themselves, respectively entitled, cannot affect the rights of the plaintiff in this action.

Judgment reversed and new trial ordered.  