Rogers v. Huie

Heydeneeldt, Justice, delivered the opinion of the Court, with which Anderson, Justice, concurred.

The question to be here decided is, whether an auctioneer, who, in the regular course of his business, receives and sells stolen goods, and pays over the proceeds of sale to the felon, without notice that the goods were stolen, is liable to the true owner as for a conversion.

[572]The only case precisely similar to this, is Hoffman et al. v. Caro^, 22 Wendell. That case was decided by the New York Court of Errors, composed then of the Chancellor and. Senate, and upon the question there was a dissenting opinion and a divided vote. The majority of the Court held, that the auctioneer was liable. The opinions are long, and there is much argument placed on the ground of convenience. To this it can be very briefly replied, that there is as much or more of that species of reasoning deduced on the other side, and which will occur readily to any one, who considers the subject. The Chancellor commences his opinion thus—“ The simple question presented for our decision in this case, is, whether the purchaser of stolen goods, who afterwards sells them as his own to a boná fide purchaser, is liable to the owner of the goods in an action of trover for such conversion thereof to his own use.”

It will be seen at one view, that he mis-states the facts in calling the auctioneer “the purchaser;” and he is guilty of petitio principa in styling the act of the auctioneer, “a conversion thereof to his own use,” because the very point to be decided was, whether it was conversion or not. And as that is also the point to be here decided, it will only be necessary to examine the doctrine of conversion as expounded by writers upon the action of j trover. The conversion, it will be conceded, is the gist of the j action, and without conversion, neither possession of the property, | negligence or misfortune will enable the action to be maintained. j In illustration of this, it is settled that a bailee is not liable in ! trover where the goods have been lost or stolen, for there is no " actual conversion. Stephens says, trover is a remedy to recover the value of personal chattels wrongfully converted by another to his own use. Chitty says, “ The refusal to deliver goods upon demand, will not in all cases constitute a conversion, unless the party refusing have it in his power to deliver up the goods detained.” ' 1 Chit. 160..

Lord Mansfield says in a case quoted, 3 Stephens’s N. P., “ A mere wrongful asportation of a chattel does not amount to a conversion, unless the taking or detention of the chattel is with intent to convert it to the taker’s own use, or that of some third person, or unless the act done has the effect of destroying or changing the quality of the chattel.” I have thus quoted enough