Levi v. Booth

Alvey, J., delivered the opinion of the Court. In this case it appears that the plaintiff was the owner of a valuable diamond ring, and he placed it in the hands and possession of a party by the name of De Wolff, a dealer and trader in jewelry, for the purpose of obtaining a match for it, or, failing in that, to get an offer for it; and there is nothing" in the proof to show that it was given into the possession of De Wolff for any other purpose, or that ho was in any manner authorized to sell it. The defendants were pawnbrokers, and dealt in articles of jewelry. De Wolff dealt with them, and made purchases on credit, and settled from time to tinte; and among other articles of jewelry, he purchased diamond rings, earrings, studs, watches, etc., and became considerably indebted to the defendants.

Tie appears to have been ³¹⁰ a sort of street peddler of articles of jewelry,—going from place to place and disposing of his articles upon the hest terms he could make. He had no shop or established place of business. On the part of the defendants the evidence tended to show, that De Wolff sold the ring to Henry Levi, one of the defendants, for a certain price,—part paid in cash, and the other part in goods. But, on the part of the Íplaintiff, proof was given, that before such alleged sale, Henry.Levi had been informed that the ring belonged to the plaintiff, and that De Wolff had no power or authority to sell it.

De Wolff, as witness, proved that he left the ring with Henry Levi to obtain an offer for it, but with (no authority to sell it; while, on the other hand, Henry Levi testified that he purchased the ring of De Wolff, supposing him to have been the real owner of it. It was also proved, by the admission and statement of Henry Levi,' when demand was made of the defendants by the plaintiff for the ring, that the ring had been sold to some person whose name he did not know or could not furnish. The plaintiff brought his action in trover for the conversion of the ring, and recovered a verdict and judgment for the supposed value thereof. At the trial, upon the evidence offered, the plaintiff submitted two prayers for instruction to the jury, and they were both granted; and the defendants ■ submitted six prayers, all of which were refused; and to the rulings of the Court in respect to ‘these • several prayers, the defendants excepted.

Upon these prayers thus submitted, three principal questions are presented: 1st. Supposing it to be true, -as contended by the defendants, that De Wolff did sell the ring to Henry Levi, one of the defendants, as if he were the owner thereof, when in fact he was not the owner', and had .no express authority to sell it, whether, under the facts dis ³¹¹ closed in evidence, such sale was good and effective at the common law, as between the defendants and the real owner? If not, 2nd. Whether such sale was good and effective, in view of the facts disclosed, as between the real owner of the ring and the defendants, under the provisions of what is known as the Factors' Act, (lode, Art. 3, see. 4?

And, •3rd. Lf neither of die defendants acquired title to the ring, whether, under the facts of the case, there was such conversion thereof hy the defendants, or one of them, as would entitle the plaintiff to recover? J. It is certainly a well established principle of the common law, founded, as it would seem, upon a maxim of the1 civil law, nemo plus juris in alium transferre potest yuam ipse habet, that a sale hy a person who has no right or power to sell, is not effective as against the rightful owner. Sales made in market overt were an exception to this general rule; hut the old Saxon institution of market overt has never been recognized in this State, nor, as far as we are informed, in any of the United States.

Browning vs. Magill, 2 H. & J., 308 ; Mowry vs. Walsh, 8 Cow., 238 ; Dane vs. Baldwin, 8 Mass., 518 ; Ventress vs. Smith. 10 Pet., 175 . At the common law, therefore, a person in possession of goods cannot confín- upon another, either hy sale or pledge, any other or heller title to the goods than he .himself has. To this general rule there is an apparent, exception in favor of bona fide purchasers or pledgees, where the party in possession making the sale or pledge has a title defeasible on account of fraud, or hy reason of a condition in the contraed of sale under which he holds. Hall vs. Hinks, 21 Md., 406 : Donaldson vs. Farwell, 9 3 U. S., 631 .

Therefore, to make either a sale or pledge valid as against the real owner, where the sale or pledge is ms . In ‘mother person, it is incumbent upon the person ciiii'dnc, under such sale or pledge, to show that the part} nml iug it liad authority from the owner. Cole vs. ³¹² North-Western Bank, L. R., 10 C. P. in Ex. Ch., 354, 363; Johnson vs. Credit Lyonnais, 2 C. P. Div., 224, affirmed on appeal, 3 C. P. Div., 32.

If, however, the. real owner of the goods has so acted as to clothe the seller or pledgor with apparent authority to sell or ¡ffedge, he will, even by the common law, be precluded from denying, as against those who may have acted bona fide on the faith of that apparent authority, that he had given such authority, and the result, as to them, is the same as if he had really given it; but it is, of course, otherwise in respect to those who may have acted with notice of the want or limitation of authority in point of fact. This principle of estoppel, as applied to sales or pledges of goods or merchandise, is .aptly and completely illustrated in the familiar and often cited case of Pickering vs. Bush, 15 East, 38. The case was decided before the passage of any of the English Factor Acts, and the facts were, that the true owner had bought parcels of hemp through Swallow, who was a broker and an agent for sale. At the instance and request of .the plaintiff, the real owner, the hemp was transferred on. the books of the wharfinger from the name of the seller to that of Swallow, who, without express authority from the owner, after-wards sold it.

In an action of trover by the real owner, to recover for the conversion of the hemp thus sold, it was held, that the transfer on the books of the wharfinger by the direction of the plaintiff to the name of Swalloio, authorized the latter to deal with the hemp as owner with respect to third persons, and that the plaintiff, who had thus enabled Swallow to assume the appearance of ownership to the world, should abide the consequence of his own act. Lord Ellenbobou&ii said: “It cannot fairly be questioned in this case but that Swallow had an implied authority to sell. Strangers can only look to the acts of the parties, and to the external indicia of property, and not to the private communications which may ³¹³ pass "between a principal and bis broker; and if a person authorize another to assume the apparent right of disposing of property in the ordinary course of trade, it must he presumed that the apparent authority is the real authority.” And in conclusion lie said: “The sale was made by a person who liad all the indicia, of property: the hemp could only have been transferred into his name for the purpose of sale; and the party who lias so transferred it cannot now rescind the contract. If the plaintiff had intended to retain the dominion over the hemp, lie should have placed it in the wharfinger’s books in his. own name.” The same principle, (hough applied in a case quite different in its circumstances, was adopted by this Court, in the case of Lister & Supplee vs. Allen, 31 Md., 543 .

And in the recent English cases of Cole vs. North-Western Bank, L. R., 10 C. P. Ex. Ch., 354; Johnson vs. The Credit Lyonnais, 2 C. P. Div., 224, affirmed on appeal, 3 C. P. Div., 32; and the City Bank vs. Barrow, 5 App. Cas. H. L., 664, the same principle, with its proper limitations, was fully expounded, both as It exists at the common law, independently of statute, and as it lias been modified by what is known as the Factors' Acts; and those cases fully and clearly maintain the principles we have stated. hi this ca.se there is no evidence that there was any express authority by flic plaintiff to I)e Wolff to sell the ring ; though there is evidence that Do Wolff was authorized to procure an offer for it. This, of course, reserved to the plaintiff the right to accept or reject the offer, if one was made.

With this ]imitating of authority, there can he no question of the principle" propounded in the plaintiff’s first, prayer; for that goes upon the hypothesis that there was no sale in fact to Levi, but that the ring was simply left, with the defendants, and that they after-wards, without other authority, sold it. If it he true that there was no sale to the defendants, or one of them, and ³¹⁴ that they, simply having the possession, and without authority for so doing, sold or disposed of the ring, it is clear they were wrong-doers, and. therefore liable for the conversion. This was the theory and the principle upon which the plaintiff's case appears to have been presented in the Court below. 2. But, on the part of the defendants, the case was presented in a different aspect.

According to the theory of the fourth, fifth, and sixth prayers of the defendants, there was a sale by De Wolff to the defendants, or one of them; and the Court was asked, by the fourth and fifth prayers, to instruct the jury, that if they found that De Wolff was a dealer in jewelry, and, with knowledge of that fact, the plaintiff intrusted him, or intrusted him as agent, with the possession of the diamond ring, and thereby put it in his power to act as apparent owner thereof, and that the defendants acted upon the faith of such apparent ownership, and