Dias v. Chickering

Ritchie, J., delivered the opinion of the Court. * The uncontroverted testimony in this case shows that Buekland & Ebeling were a firm engaged in selling pianos of their own, and also on consignment from other parties, among whom were the appellees; that the piano replevied in this case was one they had received from the appellees, and that they were authorized to sell it for cash, and when sold their duty whs to transmit the proceeds to the appellees; that this piano was, with the assent of Ebeling, removed to the residence of Buekland for private use, and after remaining there for nine or ten months was sold by Buekland, as belonging either to himself or wife, to the appellant, whose business was that of a dealer in furniture, for two hundred and fifty dollars, a fair price at the time; that appellant paid the money to Buekland, taking his personal receipt, and was a bona fide purchaser, without ³⁵⁴ notice of the relations between the firm of Buckland and Ebeling and the appellees, and unaware that either Buck-land or the firm was in any financial trouble ; a fact which he learned through the newspapers several days after the purchase. The controverted evidence was on the point of whether Buckland, when the piano was removed to his home, nine or ten months before the sale, had bought it, or merely borrowed it; Buckland testifying that he had bought it, directing it to be charged to his account, and Ebeling that it was merely lent to him. In our view of the effect of the undisputed evidence, it is immaterial in this case whether Buckland had bought the piano from the firm, or only borrowed it. The question is not whether Buckland had actually acquired title to the piano in himself as between him and the Chickerings; but whether under all the facts and circumstances' disclosed in the undisputed proof, Dias is to be protected, as an innocent purchaser for value, against the principals of Buckland and Ebeling.

In our opinion he is clearly so-entitled. Assuming that Buckland had not purchased the piano himself in fact, or that having undertaken to buy it, his-character as agent rendered such a purchase voidable in law ; he was, nevertheless, as one of the firm of Buckland and Ebeling, put in possession of the piano and specifically clothed with the power' to sell it for cash to any outside party. Such a sale he actually did make; he sold the piano for cash and received the money; and assuming the ownership of the property not to be in him, he should have transmitted the proceeds to the Chickerings to whom it was due, and who are legally entitled to recover it from him. But so far as the purchaser is concerned, his obligation ended with his payment.

The private instructions from the principal to their agent, he is not a party to nor bound by. ' Buckland being clothed, not only with pos ³⁵⁵ session of the piano but the right to sell it also, and, moreover, having been allowed to treat it as his own property, and so use it in his private family, without objection or interference by the Chickerings for nine or ten months, we think, under the common law, without pausing to consider the factor’s Act, the Chickerings are now estopped from making any demand upon Bias, and that the latter took a good title to the piano. (Decided 4th December, 1885.) The facts in this case bring it within the principle, that “when one of two innocent parties must suffer by the fraud of a third, the loss shall fall upon him who has enabled such third person to do the wrong.” It also comes within the general rules as laid down in Wharton on Agency, sec. 200: “At common law, an agent with prima facie right to sell may convey title to bona fide purchaser without notice;” and in sec. 201: “Where property is unlawfully sold by an agent, it, or its proceeds, may be followed by the principal until he meet with a bona fide purchaser without notice.” The case of Hall vs. Hinks, 21 Md., 406 , in which there is a full discussion of the principles involved, fully covers the one before us. The doctrine there expressed, as applicable to a case like this, is also recognized in Levi vs. Booth, 58 Md., on pages 311, 312. It follows, therefore, from our conclusions, that we regard the rulings and instructions of the Court below as erroneous; and as the evidence below would have justified an instruction to the jury to find a verdict for the defendant, we shall reverse the’ judgment without awarding a new trial.

Judgment reversed. Alvey, C. J., delivered the following dissenting opinion: Upon the facts of this case as disclosed by the record I have but little doubt that the right and justice of the mat ³⁵⁶ ter is with the plaintiffs. I think, however, the case was not sufficiently left to the jury ; the Court having assumed the facts and drawn a legal conclusion therefrom not in every aspect of the case entirely warranted by the law. It appears that the firm of Buckland, Ebeling & Co. were dealers in musical instruments, and had ware-rooms in Baltimore as a regular place of business.

They purchased instruments for sale, and also received instruments from other dealers and manufacturers on consignment for sale, the instruments received by them as consignées being sold for account of the consignors. They were general agents for the sale of the pianos of the plaintiffs, in this State, and the piano in question was one that had been consigned by the plaintiffs to Buckland, Ebeling & Co. for sale for account of consignors. It was therefore not the property of Buckland, Ebeling & Co., but they received it and held it for sale as the agents or factors of the plaintiffs, and were required to sell for cash, and to account for the proceeds. Instead of selling the piano in the course of their business, and as they were authorized to do, these agents allowed it to be taken from their ware-rooms by Buckland, one of the members of the firm, and taken to his private residence, and there used as a piece of'the furniture of his house for about ten months.

At the end of -that time, and but two or three days before the failure and break up of the firm, this piano was sold by Buckland at his private residence, together with all his household furniture, to the defendant, a second-hand furniture broker. The price paid for the piano, according