The Court erred in rendering a judgment for the plaintiff:

5. Masten having taken possession of the store and the goods of the plaintiff, intermixed with those he purchased, it was his duty to exercise ordinary care in the protection and preservation of the same; he therefore was not liable in any action, though he removed them, without a demand and refusal, so long as no actual conversion is shown.

6. To enable the plaintiff to recover, he should have averred and shown that he had discharged all lien or claim of the factor, to either the factor, his transferee or pawnee, or that he had made tender thereof. 5 Dumford v. East, 644.

Winans for Respondent.

The only question in this case is, whether a demand and refusal was necessary, under the facts set forth in the findings of the Court, to fix defendant’s liability. The proposition of defendant’s counsel, that it was necessary to make a tender of commissions before plaintiff’s right of action could accrue, being entirely novel and utterly unsupported by any authority in the books, we shall not discuss. Undoubtedly, a factor has a lien on his principal’s goods for his commissions, but it is for the factor to assert that lien where it exists.

It is contended that as the property was delivered to defendant on the day before he undertook to move it, and was ordered not to remove it by Monty, therefore he came rightfully in possession, and a demand and refusal were necessary to constitute a conversion. To this we answer, first, he did not come into the possession of it; and secondly, if he did, a subsequent removal after notice of plaintiff’s ownership was per se a conversion of it.

First. We contend that there was no delivery to defendant of the goods in question belonging to plaintiff.

The Court simply finds that Abel & Monty delivered to defendant all “ the goods.” What goods ? Why, the goods they sold to him. What goods did they sell to him ? All the goods in the store belonging to them.

Defendant therefore, in fact, never had any delivery to him of plaintiff’s goods, and therefore, in taking possession of them, committed *306 a tort. But assuming that he did come into possession by delivery to him from Abel & Monty; the very assumption of that possession by defendant was a conversion. Abel & Monty had no right to sell their principal’s goods, and defendant, knowing that they were the goods of another party, had no right to buy them. His very purchase, under such circumstances, was tantamount to a conversion. Cowan’s Treatise, vol. 1st, p. 231; see same authority, pp. 340, 341, 342, 343 ; Durell v. Mosier, 8th Johnson, 445; Eveard v. Coffin, 6th Wendell, 603.

“ The assuming a right to dispose of property, or exercising a dominion over it to the exclusion or in defiance of plaintiff’s right, is a conversion. Bristol v. Burt, 7th Johnson, 254, and cases there cited; Reynolds v. Shuler, 5th of Cowan, 323 ; and see as particularly applicable to the present case, Connah v. Hale, 23d Wendell, 462.

Field, J., concurring.

This appeal is without merit. The unlawful assumption by defendant of the ownership or dominion of the plaintiff’s property, was a conversion of it. If the defendant did not know, at the time he contracted with the factors, his debtors, that plaintiff owned the goods, he knew it before he removed them. If the factors had a lien for commissions, under the circumstances, the defendant, who took away the goods, and subjected the plaintiff to the cost and trouble of getting them back or recovering their value, had not. There was no necessity of any demand against a conscious wrong doer.

Whether the notice given by the factors to the defendant was so precise as to identify, with exactness, the goods in controversy, it was certainly enough to put the defendant on inquiry, and this inquiry would have easily given him the proper information. If he chose to proceed without making inquiry, and to remove .all the goods, he is responsible for the consequences.

Judgment affirmed.