Lehmann v. Schmidt
Before: Paterson
Synopsis
Assumpsit — Conversion op Personal Property—Waiver op Tort.—• When one person converts to his own use the personal property of another, the latter may waive the tort, aud sue in assumpsit for the value thereof.
Id. — Waiver of Lien — Conversion by Bailee. — If a bailee refuses, upon demand, to deliver the property to the bailor, without setting up any lien thereon, he waives his right to claim a lien after suit brought to recover the value of the property.
Id.— Contract for Sale of Wine—Conversion by Factor — Repudiation of Contract. — A factor who receives wine under an agreement to sell it for the owner, and when demand was made upon him fails to assert a lien thereon, and refuses to have anything further to do with the contract, or the sale of the wine, or to deliver or account for it, stating that it was so mixed up with his own wine that he could not make a statement of it, is guilty of a conversion of the wine, and cannot, after suit brought for its value, set up a lien for advances and expenses, as such lien, if any he had, was waived by his action.
Id.—Contract for Net Price —Loss Assumed by Factor. — Where it was stipulated in the agreement that the owner of the wine was to receive a certain price per gallon, net, for the wine, and the factor agreed to hear the expense of shipping and curing, the factor is not entitled to any allowance for sediment, or for the money expended for freight, labor, and materials.
Id.—Evidence — Value — Stipulated Price. — Evidence that the wine ' would have sold for more than the price stipulated in the contract, if it had been sold at once, taken in connection with the price stipulated in the agreement of sale, is sufficient to justify a finding that the wine was worth the stipulated price at tiie time of its conversion.
Id.—Assignment — Action by Assignee.—-An assignee of all of the bailor’s interest in the wine converted by the factor may maintain an action for its value, although the wine converted was only a portion of that consigned.
Id. — Splitting of Cause op Action. — The rule against the splitting up of a cause of action is inapplicable to sue-h a case.
Id.—Amount op Recovery—Deductions—-Advances by Factor — Allowance for Casks Ordered. —In determining the amount of recovery from a factor for the value of wines converted by him, there should be deducted from the stipulated price of the wines not only the amount of cash advanced to the bailor by the factor, but also the value of casks and drayage ordered from him by the bailor, the amount of which was charged as an advance under the contract.
Paterson, J. The authorities are clear upon the proposition that when one person converts to his own use the personal property of another, the latter may waive the tort, and sue in assumpsit for the value thereof. (Pratt v. Clark, 12 Cal. 89; Roberts v. Evans, 43 Cal. 380; Berly v. Taylor, 5 Hill, 577; 2 Greenl. Ev., sec. 108.) But it is contended by appellant that the defendant had a lien on the wine for money paid out and advanced, and that his refusal to comply with the plaintiff's demand did not constitute a conversion. The court found, however, that the defendant advanced on account of said wines, under the agreement, the sum of $678.50, and no more, and that he incurred no other liabilities on account of the wine under the agreement; and the answer of the defendant admits that he had received, “as the [21]proceeds of the sale of a portion of said wines mentioned in plaintiff’s complaint,” the sum of $1,124.16. Thus it appears, from the findings, evidence, and admissions of defendant, that he had received more than he had advanced and expended. But if this were not so, the defendant waived his lien, if any he had, for moneys advanced or expenses incurred on account of the wine, by repudiating the contract, refusing to deliver the wine, and by declining to account to Smith for the amount received or expended. It has been held in England that a person having a lien on goods does not waive it by the mere fact of his omission to state that he claims them in that right when they are demanded; but if a different ground of retention than that of the lien be assumed, the lien ceases to exist. In this country the weight of authority seems to support the contention that if the bailee refuse, upon demand, to deliver the property without setting up any lien thereon, he waives his right to claim a lien after suit brought. (Hanna v. Phelps, 7 Ind. 24; Everett v. Saultz, 15 Wend. 478.) In the case at bar, it is true, the defendant was not merely a bailee for service; he was also a factor to sell; but he not only failed to assert a lien on the wine for advances and expenses at the time a demand was made upon him, but he notified Smith “ that he would not have anything more to do with the contract,” refused to go on with the sale of the wine or have anything further to do with it, and refused to deliver possession of the wine or make any accounting in relation thereto. He stated to one of the witnesses that he could not tell anything about the wine, as “it was so mixed up with his own wine that he could not make a statement of it.” Upon this evidence the court was justified in finding that there was a conversion of the property, and that defendant waived his lien, if any he had. (Civ. Code, sec. 29; McPherson v. Neuffer, 11 Rich. 267; Ramsby v. Beezley, 11 Or. 49; Overton on Liens, sec. 115, p. 142.)
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