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The modern rule, however, generally is that title does not vest in the defendant in trover until there has been a satisfaction of the judgment, that is, until the plaintiff has been paid. In the leading case of Miller v. Hyde,87 the Supreme Court of Massachusetts held-three judges dissenting-that the plaintiff could replevy the horse, notwithstanding that she had previously obtained a judgment for the value of it in an action of trover in which the horse had been attached on mesne process, and after judgment, execution had issued in her favor, on which the officer had advertised the horse for sale; on the ground that it was not just that the plaintiff should be deprived of her property until satisfaction to the value of it had been obtained. This is the general rule, and is right enough, provided, of course, the defendant is protected from further liability on the outstanding judgment.88

87 161 Mass. 472, 37 N. E. 760, LEADING ILLUSTRATIVE CASES.

88 See opinion of Mr. Justice Holmes in Miller v. Hyde, 161 Mass. 472, 37 N. E. 760, LEADING ILLUSTRATIVE CASES; Cooley, Torts (Students' ed.), p. 437, citing authorities.

CHAPTER III.

PARTICULAR INSTANCES OF CONVERSION.

18. Conversion by bailee-Conditional sales.Any unauthorized act of dominion by a bailee of property inconsistent with the rights of the bailor is a conversion, and, in determining whether the act is inconsistent with the bailor's rights, the terms of the agreement under which the bailment was created must be consulted. If a bailee of a horse, hired for a particular journey, intentionally departs from that journey, his act is a conversion of the horse; 89 so a misdelivery by a carrier is a conversion; 90 so, too, if a bailee sells the property, having no right so to sell under the terms of the bailment.91

Conditional sales. Not infrequently personal property is delivered by one person to another under the terms of a contract whereby the latter is to acquire the title to the property upon performance of certain conditions precedent, such, e. g., as the giving of his note for the purchase price 22 or payment of the price in a designated manner.93 Such a transaction is a so-called conditional sale, and in

92

89 Perham v. Coney, 117 Mass. 102; Wentworth v. McDuffie, 48 N. H. 402. 90 Edmunds v. Merchants Despatch Co., 135 Mass. 283, LEADING ILLUSTRATIVE CASES.

91 Carter v. Kingman, 103 Mass. 517; Hirschorn v. Canney, 98 Mass. 149; Cooley, Torts (Students' ed.), pp. 424, 425, and cases cited.

92 Hirschorn v. Canney, 98 Mass. 149.

93 Sargent v. Gile, 8 N. H. 325, LEADING ILLUSTRATIVE CASES; Carter v. Kingman, 103 Mass. 517.

reality amounts to a bailment with the right in the bailee to become the owner.94 Difficulty has arisen in such cases over the question whether a sale by the so-called conditional vendee, before fully complying with the condition, is a conversion. It is clear enough that if there is a special provision in the contract against such a sale or against removal of the goods, the sale is of itself a conversion, and renders the conditional vendee,95 or his vendee," liable in trover.

In Hirschorn v. Canney, the contract was that Hirschorn's vendee should send his note for the goods; he failed to do this, but sold to Canney,97 who purchased in good faith. It was held that Canney was liable in conversion.98 The test in such cases seems to be whether, at the time of sale by the conditional vendee, he was in default under the provisions of the contract; if so, his sale is a conversion, as is also the purchase and assumption of ownership by his vendee. For example: in the cases of Hirschorn v. Canney, supra, and Coggill v. Railroad, the conditional vendee had failed to send his note as provided for in the contract; in Carter v. Kingman, the conditional vendee had violated the express provision of the contract that he should not sell or remove the goods.

There is some difference of opinion in the cases

94 Coggill v. Hartford, etc., R. R., 3 Gray 545 (Mass.); Sargent v. Gile, 8 N. H. 325, LEADING ILLUstrative Cases.

95 Carter v. Kingman, 103 Mass. 517.

96 Hirschorn v. Canney, 98 Mass. 149.

97 98 Mass. 149.

99 Coggill v. Hartford, etc., R. Co., 3 Gray 545 (Mass.).

99 Robinson v. Bird, 158 Mass. 357.

3

whether, if the contract is silent with reference to a re-sale or removal of the goods and provides for payment of the price at a future date or by installments, a re-sale by the conditional vendee before breach of the condition is a conversion. By some authorities, such a sale is a conversion;1 by others it is not. The authorities holding such a sale to be a conversion proceed upon the ground that by the sale, even before breach of condition, an immediate right of possession vests in the seller; while those which deny that such a sale is a conversion proceed upon the ground that possession and right of possession are vested in the bailee-vendee, and that until violation of the condition, by default, he can transfer his rights without liability in conversion to the bailor-vendor. In Newhall v. Kingsbury,* A sold a mowing-machine to B under a contract whereby B was to pay one-half of the price on August 15 and the other half on September 15, and the machine was to be the property of A until paid for. On July 9, C attached the machine as the property of B, and A brought an action of trover against C on July 28. It was held there was no liability. Mr. Justice Morton said that, after delivery, B "had a rightful possession which the plaintiff could not interfere with until a failure by him to perform the condition. He had an interest in the property which he could con

1 Sargent v. Gile, 8 N. H. 325, and cases cited, LEADING ILLUSTRATIVE CASES. Johnston v. Whittemore, 27 Mich. 463.

2 Vincent v. Cornell, 13 Pick. 294 (Mass.); Robinson v. Bird, 158 Mass. 357, and cases cited; Carpenter v. Scott, 13 R. I. 477.

3 Sargent v. Gile, 8 N. H. 325.

4 131 Mass. 445.

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*

*

vey and which was attachable by his creditors, and which could be ripened into an absolute title by performance of the conditions. At the time the plaintiffs commenced this suit, there had been no breach of condition, and they had no right of possession."5

19. Conversion by pledgee.-From the nature of a pledge, which is defined as a bailment of goods by a debtor to his creditor, to be kept by him until the debt is discharged, there is an incidental right in the pledgee to entrust the goods to another for safekeeping, or to convey the goods, subject to the conditions on which he holds them, or to sell the goods, if the debt for which the pledge was given is not paid.'

If, however, the pledgee sells the property by an absolute sale or sells it before the debt for which the pledge is given has become due, or re-pledges the goods for a debt of his own of a larger amount than that for which he received the goods, there is, on principle, a conversion, and by some authorities the owner (pledgor) may maintain trover against his pledgee, or the latter's transferee, even without tendering the amount of the debt. For example: If A pledges personal property to B for a debt due from A to B, and B sells the property by absolute sale and in violation of the terms of the pledge, thus

5 Compare Robinson v. Bird, 158 Mass. 357.

• Donald v. Suckling, L. R. 1 Q. B. 585 (Eng.).

7 Story, Bailments, $ 324; Merchants' National Bank v. Thompson, 133 Mass. 482, holding that the rule permitting a sale does not apply to commercial paper, at least before it is due and default made in its payment. Compare Boynton v. Payrow, 67 Me. 587.