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Glidden v. The Mechanics' National Bank.

all the evidence, was duly allowed and filed, and on error prosecuted to the circuit court, the judgment was reversed, upon the ground, as stated in the journal entry, "that said court of common pleas erred in holding that the sale by the plaintiff in error of November 5, 1883, of the iron held by it as collateral security, was a conversion at that time;" and the cause was remanded for a new trial. Error is prosecuted here to obtain the reversal of the judgment of the circuit court, and the affirmance of that of the common pleas. A further statement of facts is contained in the opinion.

Burke & Ingersolls, for plaintiff in error.

What is a conversion? Cooley's Torts, 448. Any distinct act of dominion wrongfully exerted by one on the property of another is a conversion. 2. Greenl. on Evidence, par. 642. One who exercises dominion over property in defiance of the owner's right is guilty of conversion.

1 Add. Torts, 438, note 3, same doctrine; 4 American and English Encyclopedia, 108, same doctrine. Jones' Pledges, section 571. It is optiona with the pledgor to treat such act as a conversion.

Baldwin v. Cole, 6 Mod. Rep., 212. The very assuming to oneself the right to dispose of another's goods is conversion. Dodge v. Myer, 61 Cal., 405; 104 Mass., 173; 60 N. H., 426; 15 N. H., 494; 1 Handy,532; 6 Wend., 603; 31 N. Y., 489; 45 N. Y., 718; 61 N. Y., 477; 68 N. Y., 522. This we say fully covers our case. McCorrick v. Railroad Co., 99 N. Y., 67; 102 N. Y., 681; 114 N. Y., 161. No demand is necessary where the party has not the means to comply with it. Story's Bailments, par. 107; 5 Ameriean and English Ency

Glidden v. The Mechanics' National Bank.

clopedia, 528; Jones' Pledges, par. 748; 5 Ind., 146; 3 Gray, 347; 80 Ala., 459; 1 Ala.. 423.

Some of the cases put the doctrine on this ground, that a wrongful conversion terminates the bailment. 2 American and English Encyclopedia, 58; 5 Ind., 222; 5 Ired. N. C., 213; Story's Bailments, par., 413. A pledger has a choice of several remedies. 4 Denio, 227; 45 N. Y., 718; 101 N. Y., 252. The question whether the pledgee acts in good faith or not, is not material. 31 N. Y., 493; 68 N. Y., 527; 61 Cal., 420. The courts do not hesitate where an attempted sale has been at a very low price to comment on this as an act of oppression against the real owner. 16 N. Y., 401.

The rational of the doctrine of conversion we think may be fairly summed up about as follows:

If you have any property for a specific purpose and exceed the authority given you for the control of that property and treat it as your own, I shall have the right to take you at your act, and hold you as accountable to me for the fair value of that property. If you have a lien upon it for a certain amount when that lien is deducted you owe me for the balance. We do not see how this is any injustice to a party intrusted with property. If he does not wish to make it his, let him keep his hands off.

Boynton, Hale & Horr, for defendant in error.

The circuit court reversed the judgment of the common pleas and remanded the cause for a new trial, placing its decision upon the ground that Glidden could not blow hot and blow cold; that he could not say that the sale of November 5, was valid for some purposes and void for others; that he must either stand by it or he must repudiate it,

Glidden v. The Mechanics' National Bank.

and having repudiated it, that it was to be treated to all intents and purposes as a void sale. Bryan v. Baldwin, 7 Lans., 174; Duncomb v. Railroad Co., 84 N. Y., 205; Roach v. Duckworth, 95 N. Y., 402; Insurance Co. v. Dalrymple, 25 Md., 242; Canfield v. Minneapolis A. & M. Association, 4 McCrary, 646; Field's Lawyers' Briefs, vol. 5, title "Pledges," section 120; Cooley on Torts, section 453; Jones on Pledges, section 637.

A pledgee cannot directly or indirectly purchase at a sale of the pledge under a power, unless it is specially provided by the terms of the power that he may do so. Nothing passes by the form of a sale, and the pledgee still holds the property under his original lien as collateral security. Middlesex Bank v. Minot, 4 Met., 326; Chicago Artesian Well Co. v. Corey, 60 Ill., 73; Killian v. Hoffman, 5 Bradw., Ill., 200; Baltimore v. Dalrymple, 25 Md., 269; Morgan v. Dodd, 3 Colo., 551; Bank v. Railway Co., 8 Iowa, 277; Railway Co. v. McKeran, 24 Ind., 62; Dana v. Coal Co., 38 Ill. App., 371; Canfield v. Minneapolis, etc., 14 Fed. Rep., 801.

As a further answer to the position of the plaintiff in error we claim the law to be that the plaintiff could not maintain an action for conversion until the lien created by the pledge was discharged, and the lien could not be discharged until payment or tender of payment of the debt for which the pledge was made. The reason of this proposition is obvious. Until Glidden's debt was paid by him he had no right to a return of the iron, and he could not maintain an action against the pledgee for a conversion of the iron, so long as he was in default in the payment of his debt. Whelan's Exr. v. Kinley's Admr., 26 Ohio St., 139;

Glidden v. The Mechanics' National Bank.

Lewis v. Mott, 36 N. Y., 401; Cumnock v. Newburyport Savings Inst., 142 Mass., 342; Day v. Holmes, 103 Mass., 306; Halliday v. Holgate, L. R., 3 Exch., 299; Thompson v. Toland, 48 Cal., 99; Ralty v. Bank, 93 U. S., 326; Smith v. Bunting, 86 Pa. St., 116; Bank v. Boyse, 78 Ky., 42; McCulla v. Clarke, 55 Ga., Colbrooke, on Collateral Securities, section 344.

The judgment of the circuit reversing that of the common pleas was clearly right on another ground. We asked the court to charge the jury that if they found from the evidence that the iron was advertised for sale in the public prints of Pittsburg for a few times before it was sold on November 5, 1883, and that it was cried at public auction and sold at $10.00 and $11.00 per ton, as the highest figure to be obtained for it at the time, that that fact might be taken into consideration among others in determining its value. This instruction the court refused to give and we excepted to the refusal. Although the evidence may not be very strong it is clearly settled by the authorities that what property brings at public auction is some evidence of its market value. Hooven, Owens, Rentschler & Co. v. Scott et al., 22 W. L. B., 168; Campbell v. Woodworth, 20 N. Y., 499; People v. Mc Carthy, 102 N. Y., 639; Dickson v. Buck, 42 Barb., 74; Grayv. Walton, 107 N. Y., 259; Gill v. McNamee, 42 N. Y., 44; Hoffman v. Connor, 76 N. Y., 121; Lawton v. Chase, 108 Mass., 238.

WILLIAMS, J. The record discloses that at the time of the execution of the written instrument on which the action below was founded, the maker, Glidden, had in store with the Union Storage Company, at Newcastle, Pennsylvania, 972 tons of pig

Glidden . The Mechanics' National Bank.

iron, for which he held the company's nine storage warrants mentioned in the instrument. Each warrant bound the company to deliver the iron represented by it to the order of Glidden at the place of storage, upon payment of the charges and surrender of the warrant properly indorsed. When the instrument sued on was executed by Glidden, he duly transferred the nine warrants to the bank for the purpose of pledging the iron as collateral security for the debt so contracted. On the 5th day of November, 1883, the debt having then become due, and being unpaid, the bank offered the iron for sale at public auction, after having pub. lished notice to that effect in some of the newspapers of Pittsburg; and the president of the bank, in its behalf, made a bid of ten dollars per ton for part of the iron, and eleven dollars per ton for the remainder, and all of it was struck off to him at those prices. Thereupon, the cashier of the bank notified the storage company of the purchase, and requested the ownership of the iron to be transferred at once to the president of the bank. That company made the transfer on its books, and thereafter from time to time, rendered its accounts for storage, against the bank, which were paid by it. No demand of the debt was made of Glidden before the sale, nor was any notice of the sale given him, before or after it occurred; the first information he had with respect to it was when the action below was commenced in 1888. In the meantime, however, he had made no effort to pay his debt, and no inquiry concerning it, or the situation of the iron pledged for its security, for the reason, as he states, that he had become embarrassed, and was unable to pay the debt. At the time of the auction sale, the iron was worth in the

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