Hills v. Snell.

appropriation of personal chattels will generally be sufficient of itself to enable the true owner to maintain an action for their conversion. A purchase, in good faith, from one who has no title and no right to transfer the property, will not constitute a defense. Even an auctioneer or broker, who sells property for one who has no title, and pays over to his principal the proceeds, with no knowledge of the defect of title or want of authority, is held to be liable for its conversion to the real owner. Coles v. Clark, 3 Cush. 399; Williams v. Merle, 11 Wend. 80; Hoffman v. Carow, 20 id. 21; S. C., 22 id. 285; Courtis v. Cane, 32 Vt. 232. But this severe rule of law will not be applied when the act of appropriation can be justified as having been authorized in any manner by the owner of the property. Thus, when, upon a conditional sale, the property is delivered and time given for compliance with the condition, one who purchases and resells the property before the right to perfect the title, by such compliance, has been terminated, is not liable for a conversion to the general owner who subsequently resumes his right to its possession. Vincent v. Cornell, 13 Pick. 294. When the owner has given to another, or permitted him to have, control of the property, no one can be held responsible in tort for its conversion who merely makes such use of the property, or exercises such dominion over it, as is warranted by the authority thus given. Strickland v. Barrett, 20 Pick. 415; Burbank v. Crooker, 7 Gray, 158.

In this case, the plaintiffs delivered the flour to Kemble & Hastings as the flour purchased by them from Greenough. Against the plaintiffs, therefore, the delivery to Kemble & Hastings and the sale by them to the defendant was an authority to him to treat it as his own. That it was so delivered by mistake might have entitled the plaintiffs to reclaim the property from one having it in possession, or to recover its value from one who had disposed of it with knowledge of the mistake. Chapman v. Cole, 12 Gray, 141. But they cannot take advantage of their own mistake to convert into a tort that which has been done in good faith in pursuance of authority given by themselves.

The instructions given to the jury were in accordance with these principles, and were sufficient. It is not necessary to consider in detail those prayed for. They do not reach the point upon which in our view, the case turns.

Exceptions overruled.

Abrahams v. Kidney.

ABRAHAMS, plaintiff, v. KIDNEY.

(104 Mass. 222.)

Seduction-action for, when maintainable,

A ruling to the effect that an action for seduction cannot be maintained unless it is followed by pregnancy or sexual disease, is erroneous.

TORT for the seduction of plaintiff's daughter. The judge below allowed the following bill of exceptions:

"The declaration contained no allegation, and it was not contended that the defendant's seduction of the plaintiff's daughter was followed by pregnancy or any sexual disease. Evidence was offered to show that, by reason of the seduction, and the general injury to the health of the daughter consequent thereon, it became necessary for the plaintiff to send her to New York for her health, and that, by so sending her, the plaintiff incurred great expense, together with the loss of her services. But the judge excluded this evidence, ruled that the action could not be maintained, and directed the jury to return a verdict for the defendant, which was done; and the plaintiff alleged exceptions."

C. Cowley, for plaintiff.

J. Nickerson, for defendant.

MORTON, J. At the trial of this case the plaintiff offered to show that, by reason of the seduction, and of the general injury to the health of the daughter consequent thereon, she lost the services of her said daughter. It having appeared that the defendant's seduction of the daughter was not followed by pregnancy, or by any sexual disease, the presiding judge excluded the evidence, and ruled that the action could not be maintained. The bill of exceptions is very brief, and does not state the grounds upon which the ruling was based; but we think that, upon a fair construction of it, the ruling was to the effect that an action for seduction cannot be maintained unless it is followed by pregnancy or sexual disease. We are of opinion that this ruling was erroneous.

Abrahams v. Kidney.

The rule which governs the numerous cases upon this subject is, that where the proximate effect of the criminal connection is an incapacity to labor, by reason of which the master loses the services of his servant, such loss of service is deemed to be the immediate effect of the connection, and entitles the master to his action. The same principle which gives a master an action, where the connection causes pregnancy or sexual disease, applies to all cases where the proximate consequence of the criminal act is a loss of health, resulting in a loss of service. There may be cases in which the seduction, without producing pregnancy or sexual disease, causes bodily injury, impairing the health of the servant, and resulting in a loss of services to her master. So the criminal connection may be accomplished under such circumstances, as, for instance, of violence or fraud, that its proximate effect is mental distress or disease, impairing her health, and destroying her capacity to labor. In either of these cases the master may maintain an action, because the loss of services is immediately caused by the connection, as much as in cases of pregnancy or sexual disease. Vanhorn v. Freeman, 1 Halst. 322. But if the loss of health is caused by mental suffering, which is not the consequence of the seduction, but is produced by subsequent intervening causes, such as abandonment by the seducer, shame resulting from exposure, or other similar causes, the loss of services is too remote a consequence of the criminal act, and the action cannot be maintained. Boyle v. Brandon, 13 Mees. & Wels. 738; Knight. Wilcox, 4 Kern. 413.

In the case at bar, as the ruling appears to have been general, that the action could not be maintained unless pregnancy or sexual disease was proved, we think a new trial should be granted.

Exceptions sustained.

Brabrook v. Boston Five Cents Savings Bank.

BRABROOK, plaintiff, v. BOSTON FIVE CENTS SAVINGS BANK.

A father deposited, in a savings bank, a sum of money in his own name and a like sum, as trustee, for his daughter, and retained the pass-books in his own possession. The father died, and the daughter brought suit against the bank to obtain the amount deposited by him as trustee. Held, (1) that parol evidence was admissible to show that the father deposited the money (which was his alone) in the manner he did, because the law would not permit the bank to hold so large a sum as both deposits for a single depositor; and (2) that the daughter could not recover, notwithstanding the by-laws of the bank provided that a depositor and his legal representatives should be bound by a condition annexed to a deposit, desiguating the name of the person for whose benefit it was made.

CONTRACT for money had and received. The facts, as agreed upon by the parties, are as follows: "David Knowles, the father of the plaintiff (then Eliza H. Knowles, now Mrs. Brabrook), on the 10th of July, 1860, gave to John Y. Dingley, to deposit with the defendant bank, the sum of $3,000. If it would be competent to prove by parol evidence, it is agreed that Dingley informed David Knowles that the by-laws of the defendant did not allow so large a deposit in the name of one person, but that he could deposit it, in the names of his children, for himself. Thereupon Dingley, by the direction of David Knowles, deposited the same, in equal proportions, in the name of David Knowles and his three children, one of whom was the plaintiff, took therefor four books from the defendants, informed David Knowles of what he had done, and showed him the books, and he approved the same. The entry in the book of the defendants, and in the pass-books, was as follows: 'David Knowles, trustee for Eliza Knowles,' with the date and amount of deposit. The deposit remained with the defendants unchanged, except that sums from time to time were drawn, on account of interest, by Dingley, by the direction of David Knowles, and paid to him, so as to keep the whole sum below $1,000, until the death of David Knowles. Dingley was appointed executor of the will of David Knowles, and as such claimed the funds in the

Brabrook v. Boston Five Cents Savings Bank.

defendant's hands, as belonging to his estate. All four of the bank books remained in the possession of Dingley until the death of his testator, and have since been in his possession, as executor. The defendant's by-laws may be referred to if deemed material. If, upon these facts, the court should be of opinion that the plaintiff is enti tled to said funds, judgment is to be entered for the plaintiff for the amount in the defendant's hands; otherwise, the plaintiff is to become nonsuit."

The by-laws of the bank, relating to deposits of this character, provide that "any depositor may designate, at the time of making the deposit, the period for which he is desirous that the same shall remain in the bank, and the person for whose benefit the same is made; and such depositor, and his legal representative, shall be bound by such conditions by him voluntarily annexed to his deposit." The by-laws further provide, that "no person shall receive any part of his principal or interest without producing the original book, that such payment may be entered therein."

H. C. Hutchins, for the plaintiff, argued that, prima facie, the plaintiff was entitled to recover, and cited Farrelly v. Ladd, 10 Allen, 127; Hunnewell v. Lane, 11 Metc. 163; Witzel v. Chapin, 3 Bradf. 386; Minchin v. Merrill, 2 Edw. Ch. 333; Hill on Trustees (4th Am. ed.), 482, 483. Even if the parol evidence is admitted, the deposit is valid as a gift, and cited Witzel v. Chapin, 3 Bradf. 386; Howard v. Windham Co. Savings Bank, 40 Vt. 597; Minchin v. Merrill, 2 Edw. Ch. 333; Astreen v. Flanaghan, 3 id. 279; Ex parte Pye, 18 Ves. 140, 148; Gibson v. Minet, 2 Bing. 7; Neilson v. Blight, 1 Johns. Cas. 209; Cumberland v. Codrington, 3 Johns. Ch. 229; Collinson v. Pattrick, 2 Keen, 123, 134; Thorpe v. Owen, 5 Beav. 224; Story's Eq., §§ 972, 1045. The by-laws of the bank bind the representatives of the depositor, and the bank is obliged to pay the amount to the person for whose benefit it was deposited. Farrelly v. Ladd, 10 Allen, 127; Wall v. Savings Bank, 3 id. 96, and 6 id. 320; Cummings v. Webster, 43 Me. 192, 197. Parol evidence is inadmissible. Timberlake v. Parish, 5 Dana, 345, 351; Norse v. Finch, 1 Ves. Jr. 344; McLean v. Longlands, 5 Ves. 71, 78; Rachfield v. Careless, 2 P. Wms. 158; Hill on Trustees (4th Am. ed.), 196, 197; 1 Greenl. Ev., §§ 275-277; Wall v. Provident Institution for Savings, 3 Allen, 96; White v. Franklin Bank, 22 Pick. 181;