Infancy is a bar to an action by an owner against his supercargo
for breach of instructions, but not to an action of trover for the
goods. Still, however, infancy may be given in evidence in an
action of trover upon the plea of not guilty, not as a bar, but to
show the nature of the act which is supposed to be a
conversion.
An infant is liable in trover although the goods were delivered
to him under a contract and although they were not actually
converted to his own use.
A bill of exceptions ought to state that evidence was offered of
the facts upon which the opinion of the court was prayed.
The declaration had two counts -- first, a special count
charging the defendant Smith, who was a supercargo, with breach of
orders; second, trover.
The first count stated that Vasse, the plaintiff, was owner and
possessed of 70 barrels of flour, and, at the instance and request
of the defendant, put it on board a schooner at Alexandria to be
shipped to Norfolk under the care, management and direction of the
defendant, to be by him sold for and on account of the plaintiff,
at Norfolk, for cash, or on a credit at 60 days, in good drafts on
Alexandria, and negotiable in the Bank of Alexandria. That the
defendant was retained and employed by the plaintiff for the
purpose of selling the four as aforesaid, for which service the
plaintiff was to pay him a reasonable compensation. That the
defendant received the flour at Alexandria, put it on board the
schooner, and sailed, with the flour under his care and direction,
to Norfolk,
"yet the defendant, not regarding the duty of his said
employment, so badly, carelessly, negligently, and improvidently
behaved himself in said service and employment, and took such
little care of the said flour by him so received as aforesaid, that
he did not sell the same or any part thereof at Norfolk for cash or
on a credit of 60 days for drafts on Alexandria, negotiable in the
Bank of Alexandria, but the said defendant, on the contrary
thereof, by and through his own neglect and default and through his
wrongful conduct, carelessness, and improvidence, suffered the same
and every part of the said 70 barrels of flour in his possession as
aforesaid to be embezzled or otherwise to be wholly lost, wasted,
and destroyed. "
Page 10 U. S. 227
The second count was a common count in trover for the flour.
The defendant, besides the plea of not guilty, pleaded infancy
to both counts, to which last plea the plaintiff demurred
generally.
The court below rendered judgment for the defendant upon the
demurrer to the plea of infancy to the first count and for the
plaintiff upon the demurrer to that plea to the second count. Upon
the trial in the court below of the issue of not guilty to the
count for trover three bills of exception were taken by the
plaintiff.
The first bill of exceptions stated that the defendant offered
evidence to prove that the flour was consigned and delivered to the
defendant by the plaintiff under the following letter of
instructions:
"Mr. Samuel Smith:"
"Sir -- I have shipped on board the schooner
Sisters,
Captain _____, bound to Norfolk, 70 barrels of superfine flour,
marked A.V. to you consigned. As soon as you arrive there, I will
be obliged to you to dispose of it as soon as you can to the best
advantage for cash or credit at 60 days in a good draft on this
place negotiable at the Bank of Alexandria. I should prefer the
first, if not much difference; however, do for the best of my
interest."
"Amb. Vasse"
And that the defendant received the flour in consequence of that
letter of instructions and upon the terms therein mentioned. That
the flour was not sold by the defendant at Norfolk, but was shipped
from thence by him, without other authority than the said letter of
instructions, to the West Indies for and on account of one Joseph
Smith, as stated in the bill of lading, which was for 398 barrels,
70 of which were stated in the margin to be marked A.V., 198 I.S.,
100 D.I.S., and 30 P.T.
Page 10 U. S. 228
That the defendant, when he received the flour and long after he
shipped it, was an infant under the age of twenty-one years.
Whereupon the court, at the prayer of the defendant, instructed the
jury that if they found the facts as stated, the defendant was not
liable upon the count for trover.
The second exception was the admission of evidence of the
defendant's infancy.
The third exception stated that
"Upon the facts aforesaid [the facts in the first bill of
exceptions mentioned], the plaintiff prayed the court to instruct
the jury that if it should be of opinion that the defendant was
under the age of twenty-one years, and between the age of nineteen
and twenty years, and that the defendant of his own head shipped
the flour to the West Indies, in a vessel which has been lost by
the perils of the sea, and that the said shipment was made with
other flour, on account of his father Joseph Smith, in such case
the defendant has thereby committed a tort in regard to the
plaintiff for which he is liable in this action, notwithstanding
his infancy aforesaid, which instruction the court refused to
give."
The verdict and judgment being against the plaintiff, he brought
his writ of error.
Page 10 U. S. 230
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court as
follows:
The first error alleged in this record consists in sustaining
the plea of infancy to the first count in the declaration.
This count states a contract between the plaintiff and
defendant, by which the plaintiff committed seventy barrels of
flour to the care of the defendant, to be carried to Norfolk, and
there sold for money, or on sixty days' credit payable in drafts on
Alexandria, negotiable in the bank. The plaintiff then alleges that
the defendant did not perform his duty in selling conformably to
his instructions, but by his negligence permitted the flour to be
wasted so that it was lost to the plaintiff.
This case, as stated, is completely a case of contract, and
exhibits no feature of such a tort as will charge an infant. There
can be no doubt but that the court did right in sustaining the
plea.
The second count is in trover, and charges a conversion of the
flour.
That an infant is liable for a conversion is not contested. The
circuit court was of itself of that opinion, and therefore
sustained the demurrer to this plea. But in the progress of the
cause it appeared
Page 10 U. S. 231
that the goods were not taken wrongfully by the defendant, but
were committed to his care by the plaintiff, and that the
conversion, if made, was made while they were in his custody under
a contract. The court then permitted infancy to be given in
evidence on the plea of not guilty. To this opinion an exception
was taken.
If infancy was a bar to a suit of trover brought in such a case,
the Court can perceive no reason why it may not be given in
evidence on this plea. If it may be given in evidence on
nonassumpsit because the infant cannot contract, with at
least as equal reason may it be given in evidence in an action of
trover in a case in which he cannot convert.
But this Court is of opinion that infancy is no complete bar to
an action of trover, although the goods converted be in his
possession in virtue of a previous contract. The conversion is
still in its nature a tort; it is not an act of omission, but of
commission, and is within that class of offenses for which infancy
cannot afford protection. Yet it may be given in evidence, for it
may have some influence on the question whether the act complained
of be really a conversion or not.
The Court therefore does not consider the admission of this
testimony as error.
The defendant exhibited the letter of instructions under which
he acted, which is in these words: "Sir,", &c., but the
plaintiff offered evidence that the flour was not sold in Norfolk,
but was shipped by the defendant to the West Indies for and on
account of a certain Joseph Smith, as by the bill of lading which
was produced. The defendant then gave his infancy in evidence, and
prayed the court to instruct the jury that if it believed the
testimony, he was not liable on the second count stated in the
plaintiff's declaration, which instruction the court gave, and to
this opinion an exception was taken.
This instruction of the court must have been founded on the
opinion that infancy is a bar to an action of
Page 10 U. S. 232
trover for goods committed to the infant under a contract, or
that the fact proved did not amount to a conversion.
This Court has already stated its opinion to be that an infant
is chargeable with a conversion, although it be of goods which came
lawfully to his possession. It remains to inquire whether this is
so clearly shown not to be a conversion as to justify the court in
saying to the jury the defendant was not liable in this action.
The proof offered was that the defendant shipped the goods on
account of Joseph Smith. This fact, standing unconnected with any
other, would unquestionably be testimony which, if not conclusive
in favor of the plaintiff, was at least proper to be left to the
jury. But it is urged that this statement refers to the bill of
lading, from the notes in the margin of which it appears that
although the bill of lading, which was for a much larger quantity
of flour, was made out in the name of Joseph Smith, yet in point of
fact the shipment was made for various persons, and among others
for the plaintiff.
The Court perceives, in this bill of exceptions, no evidence
explanatory of the terms under which this shipment was made, and
the marks in the margin of the bill of lading do not in themselves
prove that the shipment was not made for the person in whose name
the bill was filled up.
It is possible that it may have been proved to the jury that
this flour was really intended to be shipped on account of the
plaintiff and that the defendant did not mean to convert it to his
own use. But the letter did not authorize him so to act. It was
not, therefore, a complete discharge, and should it be admitted
that an infant is not chargeable with a conversion made by mistake,
this testimony ought still to have been left to the jury. The
defendant would certainly be at liberty to prove that the shipment
was in fact made for Vasse, and that he acquiesced in it so far as
to consider the transaction not as a conversion, but without any
of
Page 10 U. S. 233
these circumstances which, if given in evidence, ought to have
been left to the jury, the Court has declared the action not
sustainable.
This Court is of opinion that the circuit court has erred in
directing the jury that upon the evidence given, the defendant was
not liable under the second count, for which its judgment is to
be
Reversed and the cause remanded for further
proceedings. *
* THE CHIEF JUSTICE noticed also the phraseology of the third
bill of exceptions. It prays the opinion of the court upon certain
facts, without stating that any evidence of those facts was given
to the jury. It is doubtful whether those facts exist in the case
and whether the court would be bound to give an opinion upon
them.
