
    Walter v. Bennett.
    .The plaintiff, in one coqnt of Ms complaint, claimed to recover the possession of a draft which he alleged to belong to him, and to be wrongfully detained by the defendant, and in another count to recover the possession of $7250 of money which he alleged to be Ms property, wrongfully detained. At the trial, he proved that the defendant, as his agent, had sold a quantity of pork and received therefor the draft claimed, which he procured to he discounted and had the money put to his own credit in hank; after he had done so the plaintiff demanded of him the draft or the avails thereof, and the defendant refused to deliver the same. Upon this proof the plaintiff claimed to recover, as upon contract, the money due him from the defendant; Held, that he was properly nonsuited. The variance was not one which might he disregarded or amended under the Code of Procedure, but is a failure to prove the alleged causes of action, not in some particulars only, but in their entire scope and meaning.
    Appeal from the Superior Court of Buffalo. The action was brought to recover the possession of a draft alleged to belong to the plaintiff and to be wrongfully detained by the defendant, and also to recover the possession of $7250 of money alleged to be the property of the plaintiff, wrongfully detained by the defendant. These claims are set out separately in the two counts of the complaint. The answer is a simple denial of the allegations of the complaint. * At the trial, before Mr. Justice Clintok and a jury, it was proved that the defendant was employed by the plaintiff to sell and deliver for him five hundred barrels of pork. As such agent, and in the course of his employment, the defendant sold and delivered the pork to Watson & Williams, of Montreal, who, in payment therefor, and in accordance with the terms of the sale, sent to the defendant the draft in question, payable to his order. The draft was drawn by the Bank of Montreal on the Bank of Commerce, in the city of New-York, for ¿£1812.10, Canada currency, at six days after sight and without grace, and was dated on the 23d day of September, 1854. On the twenty-sixth day of September the defendant indorsed the draft, took it to the International Bank of Buffalo, had it discounted, received the money upon it, or had it passed to his credit upon the books of the bank. The draft was paid at maturity to the International Bank by the Bank of Commerce, in whose possession it continued until the time of the trial. The plaintiff became aware, on the twenty-seventh of September, that Watson & Williams had remitted the draft to the defendant in payment for the pork, and on that day he demanded it, or the avails thereof of the defendant, who then admitted that he had received the draft and refused to deliver it. The judge nonsuited the plaintiff and ordered judgment for the defendant, which was subsequently affirmed at general term, and the plaintiff appealed to this court.
    
      Amasa J. Parker, for the appellant.
    
      John Qanson, for the respondent.
   Brown, J.

The question principally discussed by the counsel for the appellant was, whether an action will lie to recover the possession of personal property, when it appears the defendant had parted with the possession of the property before the commencement of the action. The decision of that question is not necessary to the determination of the rights of the parties to this action, because it will be seen that the defendant’s possession of the draft during all the time it remained with him was rightful, and in parting with and obtaining the money upon it he was pursuing the line of his duty. At no time was his possession of the draft unlawful or in hostility to the plaintiff, and in converting it into money he was in the plain and obvious execution of his trust as the agent and employee of the plaintiff. The relation between the parties rested in contract; for agency under all the authorities, is a contract express or implied. Whatever responsibility attaches to the defendant, from his relation of agent, is upon the contract, and the plaintiff cannot, by changing the form of his action, change the nature of the defendant’s obligation, and convert that into a tort which the law deems to be a simple breach of an agreement. The form of the plaintiff’s action is ex delicto; and before he can recover he must show that the defendant committed a wrong, or, in other words, wrongfully withheld this draft from the true- owner. Had the plaintiff terminated the agency and demanded the draft while it was in the defendant’s hands, and before he had negotiated it with the bank, his claim, would have stood on very different grounds. But the right to sell implied the right to receive the price of the goods, and, in receiving the draft in payment and realizing the money upon it, the defendant did what was right and was in the exact performance of his duty. The plaintiff must therefore take his remedy for the money in form ex contractu, or not take it at all.

The judgment of the Superior Court should be affirmed.

Johnson, J.

The complaint states two causes of action, each of which is a claim to recover personal property, with damages for its wrongful detention. Upon the trial the plaintiff endeavored to make out a wrongful conversion by his agent of a draft or bill of exchange, and was held by the court who tried the cause to have failed in so doing. The defendant was the agent of the plaintiff to make the sale and collect the proceeds, and when he received from the purchaser a bank draft, payable to his own order, he was not-acting in violation of his duty in reducing it into money, or having it passed to his own credit in bank. Undoubtedly the plaintiff might have demanded the draft of him upon his receipt of it, and would have been entitled to the specific delivery of it so long as it remained in the defendant’s j>os~ session; but, in the absence of such demand, the defendant might lawfully dispose of it in the ordinary course of business. The duty of an agent for sale is to account for the proceeds of his principal’s property, but he is not guilty of a conversion if he does not deliver the specific proceeds to his principal. That he afterwards equivocated about the fact of payment, and misconducted himself, as the case discloses, will not render his previous lawful conduct unlawful. The plaintiff was, therefore, correctly held to have failed in the proof of his case as alleged. It is, however, contended he should not have been nonsuited, but should have had judgment for the debt, which the defendant upon the proof appeared to owe him. It is, of course, clear that no such thing was possible under the old system of procedure, and it is equally clear that the right which alone could sustain a recovery, as upon contract, is distinct from and even inconsistent with the right upon which the action for a wrongful conversion could be maintained, although each relates to or grows out of the same personal property. But the question is, whether the provisions of the Cqde, liberal as they are in respect to variances, can be held to cover such a case as this, or whether we are not bound to say that the allegation of the cause of action was unproved, not in some particulars only, but in its entire scope and meaning, and that it was not a case of variance, under sections one hundred and sixty-nine and one hundred and seventy of the Code, but a failure of proof under the one hundred and seventyrfirst section. Other provisions of the Code furnish, I think, conclusive proof that the defect in this case brings it within the latter provision. If the plaintiff had put into his complaint a statement of his cause of action, as founded on contract, such in substance as he now asks to have judgment upon against the defendant, and had joined it with the allegations contained in the present complaint, the whole pleading would have been bad upon demurrer, under the provisions of section one hundred and sixty-seven, subdivisions two and six, and section one hundred and forty-four, subdivision five.

All the judges concurring,

Judgment affirmed  