Conversion. Replevin. Evidence, Of ownership, Relevancy and materiality, Admissions and confessions. Witness, Deposition. Attorney at Law.
At the trial of an action for the alleged conversion of certain whiskey, it appeared that an agent of the plaintiff, authorized only to solicit orders and make collections, requested one B. to store for him some whiskey in barrels, asserting it to be his own, and, B. consenting, four barrels of whiskey of the plaintiff's brands, three labelled "Hornpipe" and one "Boston League," were delivered to B. and there remained stored until taken from him on a writ of replevin by the defendant. A deposition of the plaintiff was read, in which, in response to the question, "Did you ship any whiskey to B.? If you say you did, state how and under what circumstances and describe the whiskey and how the barrels were marked," he stated, "I notified my teamster to deliver to B. four barrels of Hornpipe and one of Boston League. The whiskey consisted of three barrels Hornpipe and one of Boston League. Three barrels were marked `Hornpipe,' and one `Boston League.'" Held, that there was evidence that the whiskey taken from B. by the defendant came to B. from the plaintiff, and that the plaintiff had not parted with his title to it.
At the trial of an action of tort for conversion, it appeared that the defendant caused a writ of replevin to issue against one B. and that an officer, acting under that writ, took from the possession of B. whiskey which was the property of the plaintiff, that the defendant received the whiskey from the officer and sold it. Held, that there was evidence of a conversion by the defendant.
At the trial of an action for conversion of whiskey in barrels, it appeared that an agent of the plaintiff, authorized only to solicit orders and make collections, asked one B. to store for him some whiskey in barrels, his property, and, B. consenting, thereupon, by falsely representing to the plaintiff that B. had ordered the whiskey of the plaintiff, the agent induced the plaintiff to ship it to B. The agent was not called to testify, but the defendant sought to show certain acts and statements of ownership of the property by him. Held, that such evidence rightly was excluded.
At the trial of an action for conversion, it became material for the plaintiff to establish that certain whiskey in barrels taken from one B. by the defendant was the same delivered to B. by the plaintiff. The plaintiff's deposition was read in which he was asked, "Did you ship any whiskey to B.? If you say you did, state how and under what circumstances and describe the whiskey and how the barrels were marked"; and answered, "I notified my teamster to deliver to B. four barrels of Hornpipe and one of Boston League. The whiskey consisted of three barrels Hornpipe and one of Boston League. Three barrels were marked `Hornpipe' and one `Boston League.'" He also was asked "Please state what whiskey you shipped to B. and its value," and answered "The value of the Hornpipe whiskey amounts to $279, and the value of the one barrel of Boston League whiskey amounts to $118." It also appeared that B. received from the plaintiff and the defendant took from B. three barrels of whiskey labelled as the plaintiff's brand of Hornpipe whiskey and one barrel labelled as the plaintiff's brand of Boston League. Held, that the questions and answers in the deposition tended to identify the whiskey and rightly were admitted.
At the trial of an action against a corporation for conversion, it appeared that, up to within two months of the trial, one A. had appeared as attorney of record for the defendant, and, while such attorney of record, had given to the plaintiff's attorney a signed statement that, when the case was tried, the treasurer of the defendant would admit certain facts. A. was not attorney for the defendant at the time of the trial. The statement was introduced in evidence to prove the facts therein admitted, and was held to have been admitted properly.
KNOWLTON, C.J.
The issues in this case, as stated by the judge in his charge to the jury, are very simple. They are whether the plaintiffs were the owners of the whiskey at the time of the alleged conversion, and whether the defendant converted it. The first issue includes the question whether the goods are identified as property that once belonged to the plaintiffs, and if so, whether they parted with their title before the conversion. There was testimony from one of the plaintiffs, by a deposition, that his firm shipped to one Bowen three barrels of Hornpipe whiskey and one barrel of Boston League whiskey, and that each of the barrels was marked with its proper brand, three with the name Hornpipe and one with the name Boston League. The manner and circumstances of making the shipments, which were called for by the question, were shown only by an answer that the firm notified their teamster to ship to Bowen four barrels of Hornpipe whiskey and one of Boston League whiskey. It does not appear that the witness did not have other knowledge that the shipment was made. In another answer the witness gave the value of the whiskey shipped to Bowen, referring to it by a general statement similar to the first. Bowen testified to having received four barrels of whiskey bearing the plaintiffs' brand, marked like those referred to by the former witness. It appears that the arrangement for the receipt of this whiskey by Bowen was made by one Hanley who was employed by the plaintiffs to solicit orders for the sale of their whiskey and to make collections.
There was ample evidence to warrant the jury in finding that the whiskey received by Bowen came from the plaintiffs' stock and that the plaintiffs never parted with their title to it.
There was testimony from Kimball, the defendant's treasurer, that he bought four barrels of whiskey from Hanley, which was then stored on Bowen's premises, and which Hanley said he owned. It appeared that the defendant replevied from Bowen four barrels of whiskey branded like those described by the plaintiff in his deposition, and that this whiskey was received from the officer by the defendant, and afterwards sold and the proceeds of it received by the defendant, and that the defendant refused to return the whiskey to the plaintiffs upon demand. This was convincing evidence of a conversion. The instruction of the judge that, if the defendant in any way, either by process of law or otherwise, asserted and exercised a right to take possession of this whiskey and carry it away from the place where it was stored, that would be a conversion, was correct, as applied to the facts of this case. See Pine v. Morrison, 121 Mass. 296.
There was no evidence that Hanley had any title to the whiskey shipped by the plaintiffs to Bowen. Neither his declarations nor the statements and conduct of others, founded on his declarations, were competent evidence.
The testimony of the plaintiff by deposition was competent. It tended to identify the whiskey stored by Bowen.
So too was the agreement of the defendant's attorney of record as to facts to be admitted by the defendant at the trial. Lewis v. Sumner, 13 Met. 269. The attorney had a right to make the agreement, the plaintiffs acted upon it, and it does not appear that the authority was ever revoked, much less that the plaintiffs were ever notified of its revocation, or of any attempt to cancel the agreement.
Exceptions overruled.