
    McCLELLAN v. WYATT.
    
      N. Y. City Court, General Term;
    
    
      December, 1890.
    I. Cnversion; refusal to deliver ; evidence of inability.] Under the rule that in an action for conversion, based on defendant’s refusal to deliver on demand, it is admissible to show lawful reasons for such refusal, such as inability to comply arising from no fault of the defendant, an employee sued by third person for non-delivery of goods deposited with defendant by defendant’s employer may show that the employer had sold the goods.
    2. The same j case stated^ The plaintiff shipped goods by rail which were stored by the railroad company with defendant, an employee of the company.—Held, competent in an action for conversion based on defendant’s refusal to deliver the goods to plaintiff on his demand, to show that the railroad company sold the property as unclaimed baggage under the statute before any demand was. made on the defendant.
    3. The same ; possession ; empl yee’s refusal to deliver.] Evidence - that the defendant, an employee and storekeeper of a. railroad company by which plaintiff had shipped goods, having received them on storage from the company, refused to deliver them to plaintiff upon his demand therefor and tender of the proper charges, upon the ground that the company had sold the goods as unclaimed baggage, does not show that defendant was guilty of any conversion or breach of duty to the owner of the property.
    Appeal by the defendant from a judgment entered, on a verdict in favor of the defendant,
    John W. McClellan brought this action against Richard K. Wyatt, for the conversion of two cases of' goods shipped by the plaintiff at Titusville, Penn., oit the New York, Lake Erie & Western Railroad in May,, 1884. The plaintiff claimed that the goods had been stored with defendant on their arrival in New York: city, and that he had refused to deliver them to thej plaintiff upon his demand therefor, and was therefore1 liable for conversion.
    The evidence proved that the defendant was a mere employee of the railroad company, to wit, its storekeeper ; that on May 15, 1884, the goods arrived in New York, and the defendant notified the plaintiff of their arrival. About August 1, 1884, the plaintiff called for his goods, and the defendant at his request figured up the freight charges. Plaintiff said, “ Shall I pay them ?"" Defendant said “ Are you going to take the goods out ?\ Plaintiff said “ No.” Defendant testified that he said to plaintiff, “ You need not pay till you take them out; the company will keep your goods for twelve months.” The plaintiff testified substantially to the same facts, except that no time for keeping the goods was specified. The defendant offered to prove that the goods were sold at auction by the railroad company as unclaimed baggage, May 27, 1885, pursuant to the statute (2 R. S. 7 ed. 1586, § 10, 1589, § 3; 3 Id. 2260; Id. 2262). This evidence was excluded under exception.
    The defendant proved that the only possession he had of the property was as an employee of the railroad company. He admitted the tender made and its sufficiency, and placed his refusal to deliver the property on the facts stated. The tender and refusal were made after the alleged sale. The jury rendered a verdict for the plaintiff, and from the judgment entered therein, ■defendant took this appeal.
    
      J. A. Buchanan and Chas. Steel, for the defendant, ■appellant.
    
      Lawrence & Buckley, for the plaintiff, respondent.
   McAdam, C. J.

The defendant was not guilty of breach of duty, and there was no conversion of the property by him. The freight charges were not paid, and the property never left the control of the railrohd company until after the sale by it hereafter referred to. The defendant never had possession of the property, except in a qualified sense, as an employee of the railroad company, subject to its control and direction. He offered to prove that his employer sold the property befo're any demand was made upon him for it. This testimony ought to have been received as it tended to show that compliance with the demand on his paid was impossible. Refusal to deliver on demand is not in itself conversion, only evidence of it; and a defendant is always at liberty to show lawful reasons for not complying with a demand made, such as inability to comply arising from no fault of his.

In order that a refusal may constitute a conversion, the demand must be made under such circumstances ■(ordinarily in the presence of the goods), that if the defendant were willing to do so he would be able to deliver over the goods. Wild, C. J. (in Towne v. Lewis, 7 Q. B. 611), says: “ Authorities are not wanting to show that a party is not guilty of conversion because he does not restore the chattel when it is not at the moment in his possession and under his immediate control.” In Canot v. Hughes (2 Bing. N. C. 448), some Avine Avarrants, demanded of an administrator, Avere in the hands of the attorney of her deceased husband, and it Avas held not to be a refusal to refer the plaintiff to him. If the defendant has not the possession or control of the goods, a failure to comply with a demand is not a conversion (Andrews v. Shattuck, 32 Barb. 396; Yale v. Saunders, 18 Vt. 243; Robinson v. Burleigh, 5 N. H. 225 ; Gillett v. Roberts, 57 N. Y. 28). In the case last cited, Earl, Commissioner, said of goods demanded at a distance : “ Where words are reliedjjpon (to prove a conversion), they must be uttered under such circumstances in proximity to the propertAr as to sIioav a deffance of the •owner’s right, a determination iu v.-.crcise dominion and control of the property, and to exclude the OAvner from the exercise of his rights ” (see also Blakey v. Douglass, 10 Eastern Rep. 746; Buffington v. Clark, 8 Atl. Rep. 247; Abington v. Liscomb, 1 Q. B. 776; Rushworth v. Taylor, 3 Id. 699; Shearin v. Bysbee, 97 N. Car. 216; 1 Southeast. Rep. 770). There was no proof that defend ant kept a warehouse or had any interest in the building where the goods were stored, or that his alleged possession was different from that described by him, to wit, as a mere employee of the company.

The proceedings under the statute, Avhether conducted properly or not, were material to show that by the acts oí the company the property was placed beyond the control of the defendant without his agency, before demand was made on him for the property. If it had been proved that the actual possession of the property had passed from the railroad company to the defendant as a warehouseman prior to the sale,, the defendant might have become liable, but no responsibility attaches tó the defendant for his acts performed within the scope of his duties as a servant to the company. In Alexander v. Southey (5 Barn. & Adol. 247), it appeared that goods, the property of the plaintiff,, had been, by servants of an insurance company carried to a warehouse, of which the defendant, a servant of the company, kept the key, and the defendant, on being applied to by the plaintiff to deliver them up, refused to do so without an order from the company; and it was. held that this was not such a refusal as amounted to a conversion of the goods by the defendant. Holroyd, J., said: “ In point of law the goods were only in the custody of the defendant, and in the possession of his, employer, the insurance company. If we were to hold this refusal to be a conversion, it would go this length, that if a person were to call at a gentleman’s house and .to ask his servant to deliver goods to him, and the servant were to refuse to do so, unless a previous application was made to his master, it would amount to a conversion by the servant.” In that case a judgment for the defendant was affirmed. In McDougall v. Travis (24. Htm, 590), it was held that an action of replevin cannot be maintained against a freight agent of a railroad company for a refusal to deliver freight to the consignee until certain charges thereon have been paid, where he makes no claim to, and has no possession or control of the property, except as the agent or servant of the company. This upon the theory that the servant had no such possession as gave him the dominion of the property, and that its control was in the corporation he represented. That what he did was in law the act of the principal, because exercised within the legitimate scope of his agency and pursuant to its terms. In Chambers v. Lewis (16 Abb. Pr. 444), the court of appeals held that “ the possession of the agent of the defendant was his possession; and the conversion was equally as effective by his refusal to permit his agent to deliver the goods, as if they had been in his actual possession,- and he had refused to deliver them himself.” This upon the familiar doctrine that the possession of the agent must be regarded as the possession of the principal. We do not intend to hold that an agent or employee may in no case make himself liable for an unqualified refusal to give up property under his control. Cases of this character vary so, that each must stand on its own peculiar merits, it being impossible to lay down a rule comprehensive eziough to cover all.

For the error in refusing to permit the defendant to prove the sale by his employer, the railroad company, and his consequezit inability to comply with the demand when made, and upon the further ground that the defendant, upon the evidence, was not guilty of conversion or breach of duty, the judgmezit must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Fitzsimons, J., concurred.  