Scriber v. Masten

The Court erred in rendering a judgment for the plaintiff:

1st. Because the Court finds that there was no demand and refusal shown.

2d. Because Abel & Monty were not technical factors, and the notice given to Masten at the time of the transfer, “ that there were some goods in the store left them on commissionwithout stating what they were or where they were, was insufficient to render his possession of the goods tortious. 7 Term R. 360 ; 6 Cal. R. 383; 5 Cal. R. 404.

3d. Because the findings show that the defendant took possession of the store and all the goods, under such insufficient notice, and had possession of the same a day before Abel & Monty objected to the removal of the butter and cheese.

4th. The transfer was good, at least to the interest Abel & Monty • [305]had in the goods left on commission, for storage, commissions, etc., and Masten had a right to take possession.

5. Masten having taken possession of the store and the goods of the plaintiff, intermixed with those he purchased, it was his duty to exercise ordinary care in the protection and preservation of the same; he therefore was not liable in any action, though he removed them, without a demand and refusal, so long as no actual conversion is shown.

6. To enable the plaintiff to recover, he should have averred and shown that he had discharged all lien or claim of the factor, to either the factor, his transferee or pawnee, or that he had made tender thereof. 5 Dumford v. East, 644.

Winans for Respondent.

The only question in this case is, whether a demand and refusal was necessary, under the facts set forth in the findings of the Court, to fix defendant’s liability. The proposition of defendant’s counsel, that it was necessary to make a tender of commissions before plaintiff’s right of action could accrue, being entirely novel and utterly unsupported by any authority in the books, we shall not discuss. Undoubtedly, a factor has a lien on his principal’s goods for his commissions, but it is for the factor to assert that lien where it exists.

It is contended that as the property was delivered to defendant on the day before he undertook to move it, and was ordered not to remove it by Monty, therefore he came rightfully in possession, and a demand and refusal were necessary to constitute a conversion. To this we answer, first, he did not come into the possession of it; and secondly, if he did, a subsequent removal after notice of plaintiff’s ownership was per se a conversion of it.