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THE GREEN BAG
NOTES OF THE MOST IMPORTANT RECENT CASES COMPILED BY THE EDITORS OF THE NATIONAL REPORTER SYSTEM AND ANNOTATED BY SPECIALISTS IN THE SEVERAL SUBJECTS (Copies of the pamphlet Reporters containing full reports of any of these decisions may be secured from the West Publishing Company, St. Paul, Minnesota, at 35 cents each. In ordering, the title of the desired case should be given as well as the citation of volume and page of the Reporter in which it is printed.)
CARRIERS. (Freight — Conversion.) W. Va. — An attempt to hold a common carrier liable for conversion upon a rather unusual state of facts gives rise to the case of Dudley v. Chicago, Mil waukee & St. Paul Railway Co., 52 Southeastern Reporter, 718. A quantity of apples was shipped with drafts on the buyer for their value according to the contract of sale, attached to the bills of lading. The buyer of the apples on hearing of their arrival sent his agent to inspect them, and the railroad company allowed him to do so with out his producing the bills of lading or showing any right or title to the possession of the apples. The agent reported to the buyer that the apples were not such as the seller had agreed to deliver and thereupon the buyer refused to accept the apples or pay the drafts. After some correspondence the railroad company sold the apples for much less than the original contract price. Under these circumstances the buyer sought to charge the rail road company with the value of the apples on the theory that the wrongful act of the company in allowing the inspection constituted a conversion. Recovery upon this theory is denied upon the ground that though the act of the railroad com pany may have been wrongful it did not amount to an exercise of dominion over the property or a change of possession so as to constitute a conver sion. The case seems to correctly hold that a carrier is not liable as for a conversion because it permits a wrongful inspection of goods. The goods in this case were consigned by the consignor to himself. The carrier permitted the person who was expected to purchase them to inspect them without the per mission of the consignor. If this person had been the consignee, he would have plainly had the right to inspect and the carrier would be bound to afford him such privilege, even though ex pressly instructed not to deliver the goods until they were paid for. Hutchinson on Carriers, Sec. 393. In Lyons v. Hill, 46 N. H. 49, the carrier allowed the consignee to take away a coat, on
paying to the carrier the price, under an agree ment that if the coat proved unsatisfactory the carrier would return the price, and this conduct on the part of the carrier was fully approved by the court. The only ground of complaint as to the carrier in the present case seems to have been that the intended purchaser was not the con signee. Submitting the goods to an unauthorized inspection would plainly fall short of a conver sion under the definition given by Bouvier " An unauthorized assumption and exercise of the rights of ownership over goods or personal chattels belonging to another to the alteration of their condition or the exclusion of the owner's rights." He says further that " a mere trespass with no further intent is not conversion." Thus it was held in Fouldes v. Willoughby 8 M. & W. 540, that a ferryman who, under claim of misconduct on the part of a passenger upon his boat, ordered the passenger from the boat with his horses, and upon his refusal to leave the boat, took the horses ashore and left them with a brother (of the ferry man), the passenger continuing his journey upon the boat; that the ferryman was not guilty of con version of the horses unless there was an intent to convert to the taker's own use or that of third persons, or unless the act done has the effect either of destroying or changing the quality of the chattel. See also Stevens v. Curtis, 18th Pick. 227. So where one claimed that a lease had terminated and removed the plaintiff's goods from the premises and took them to plaintiff's place of business and plaintiff with a shot-gun prevented their deposit there and defendant then placed them in a ware-house in plaintiff's name, it was held that there was no conversion. Browder v. Phinney, 79 Pac. 598 (1905). The case under consideration also holds in re liance upon section 432 of Hutchinson, that a carrier in an emergency acting as agent for all concerned, may sell perishable freight. The only cases cited by Hutchinson for this doctrine in volved the rights of carriers by water. They
