whom they act, and whether they can be saved harmless if their action shal amount to a conversion of another's property. Every exoneration from responsibility in the premises but facilitates the enjoyment of the fruits of larceny, and the hardship one suffers in a case like that under consideration is but one of the everyday fruits of a want of proper caution in business. 500 "This doctrine of conversion should not, however, be carried too far. It is not the fact that one takes possession, merely, of property as a depositary or common carrier that should charge him, but some action by which it is converted into something else, as into money or other property, either by sale, exchange, or collection, or some other intermeddling inconsistent with the owner's right should be found in order to make the person responsible who has obtained innocent possession."

This case was followed and approved in Williams v. Wall, 60 Mo. 322, and it was said, by way of supplement thereto: "And authorities are not wanting. . . . that the same liability attaches to an unauthorized act, whether the actor was conscious of the wrong he was committing or not."

In Dusky v. Rudder, 80 Mo. 407, Koch v. Branch, 44 Mo. 542, 100 Am. Dec. 324, and Williams v. Wall, 60 Mo. 322, were expressly followed, and it was said: "The controlling question in this record is, whether a conversion of plaintiff's sheep or their wool, or the proceeds of either, took place as charged in the complaint. If the evidence establishes that a conversion of plaintiff's property occurred in either of these ways, and that the defendant in any manner aided in such conversion, the law holds him responsible therefor. True, a mere bailee, whether common carrier, or otherwise, may receive property from one not rightfully entitled to the possession, and may deliver it in pursuance of the bailment, if this is done before notice of the rights of the real owner. After such notice he acts at his peril: Cooley on Torts, 456. And the evidence tends to show notice to the defendant, and a conversion by him of the property of the plaintiff and of its proceeds. Any wrongful act which negatives or is inconsistent with the plaintiff's right is per se a conversion."

Koch v. Branch, 44 Mo. 542, 100 Am. Dec. 324, has also been approved in the following other cases: National Bank of Commerce v. Morris, 114 Mo. 255, 266, 35 Am. St. Rep. 754, 21 S. W. 511; Ess 501 v. Griffith, 128 Mo. 62, 30 S. W. 343.

In Ess v. Griffith, 128 Mo. 62, 30 S. W. 343, the rule was thus stated by Macfarlane, J.: "All persons who jointly commit

a trespass are jointly liable for the consequences. The purchaser, with knowledge of the conversion, is jointly liable with the wrongful seller. The transaction is a joint conversion and creates but one cause of action: Smut v. Briggs, 64 Wis. 497, 25 N. W. 558. An agent who, for his principal, wrongfully takes or detains or sells the goods of another, is personally liable in an action of replevin, trover, or other action for the tort, even though he acted in good faith, supposing the goods to be his principal's, and although he has delivered the property to his principal: Mechem on Agency, sec. 574. That the principal is liable for the torts of his agent while acting within the scope of his agency cannot be questioned. It does not matter that the parties acted in good faith, and believed they had the right to take and dispose of the property. It may seem to be hard to be held for a wrong when no wrong was intended, but it is no harder than for the plaintiff, without fault on his part, to lose his property."

To which consideration it may be added that it is no greater hardship on the agent who has assisted in the conversion to be held liable to the owner, than it is to the purchaser to have to give up the property to the true owner after he has paid his money for it.

Auctioneers and brokers who, in the regular course of business, received and sold stolen goods, from the person in possession, without notice and in good faith, have been held liable in conversion, by the true owner: 26 Am. & Eng. Ency. of Law, 1st ed., 720, and cases cited in notes.

Following these precedents, it must be adjudged that the second instruction given for the plaintiff is not erroneous. For the same reasons, the third instruction given for the plaintiff, 502 holding the auctioneer liable although he acted innocently and without notice, must be adjudged proper. True, the goods were not stolen goods, but they were in custodia legis as to Mrs. Smith and Mrs. Mohr, and it was fraud for Mrs. Smith to sell them, and, therefore, the same principle applies as in case of assisting in the sale of stolen goods.

The judgment of the circuit court is affirmed.

All concur.

A Conversion is any Unauthorized Act which deprives one of his property, permanently or for an indefinite time: Union Stockyard etc. Co. v. Mallory, 157 Ill. 554, 48 Am. St. Rep. 341, 41 N. E. 888; monographic note to Bolling v. Kirby, 24 Am. St. Rep. 795-819, on trover and conversion. The intent with which the

wrongful act is done is not an essential element of conversion: Velsian v. Lewis, 15 Or. 539, 3 Am. St. Rep. 184, 16 Pac. 631. An auctioneer is liable for selling the property of another, unless he can show some other excuse or justification than his good faith and his ignorance of the true owner's title: Robinson v. Bird, 158 Mass. 357, 35 Am. St. Rep. 495, 33 N. E. 391; Kearney v. Clutton, 101 Mich. 106, 45 Am. St. Rep. 394, 59 N. W. 419. A bailee converting property is answerable, no matter how good his intentions or how careful he has been: Hubbell v. Blandy, 87 Mich. 209, 24 Am. St. Rep. 154, 49 N. W. 502. A broker who sells stolen property, in good faith, is liable for conversion: Fort v. Wells, 14 Ind. App. 531, 56 Am. St. Rep. 316, 43 N. E. 155.

One Whose Property has been Replevied by a writ against his agent or bailee can retake it by replevin from the plaintiff in the first action, even during the pendency of that action: White v. Dolliver, 113 Mass. 400, 18 Am. Rep. 502.

CRIM v. CRIM.

[162 Mo. 544, 63 S. W. 482.]

CONTRACTS-READING BEFORE EXECUTION.-A person who is sui juris cannot release himself from the payment of a note or other contract in the absence of fraud, misrepresentation, trick, or concealment, on the ground that he did not read the contract before he signed it, if he had full opportunity to read it and deliberately signed it. (p. 523.)

CONTRACTS-EVIDENCE TO VARY.-In the absence of fraud or mistake, parol evidence is not admissible to contradict or vary a written agreement. (p. 524.)

JUDGMENTS-SUITS ON - DEFENSES.-After judgment on a note the latter is merged in the former, and defenses that might have been available if properly interposed in the suit on the note cannot be set up against the judgment. (p. 524.)

JUDGMENTS-DEFENSES.-FRAUD IN A NOTE constituting the cause of action is not a defense in an action on the Judgment into which it has been merged. (p. 524.)

FOREIGN JUDGMENTS BY CONFESSION.-A judgment without process or actual appearance on a note containing a cognovit authorizing any attorney to appear in any court in the United States, waive process, enter appearance, and confess judgment for the amount due, with interest and costs, and release all errors, if authorized by the laws of the state where the judgment is rendered and the note is made, must be given "full faith and credit" when sued upon in another state. (p. 524.)

JUDGMENTS-FOREIGN-LIMITATIONS.-If judgment is obtained in one state, and before it has expired by limitation suit is brought thereon in another, the fact that the cause of action upon which the judgment was obtained has expired by limitation in the latter state is immaterial, and does not bar the action. (p. 525.)

White & McCammon, for the appellant.

Thurman, Wray & Timmonds, for the respondent.

550 MARSHALL, J. The following opinion was heretofore rendered in this case by Division One of this court:

"Action upon a foreign judgment for seven thousand and four dollars. Judgment for defendant. Plaintiff appeals.

"The parties are brothers, and both formerly lived in Ohio. The defendant was in debt to the plaintiff, and on the 10th of November, 1881, was about to remove to Missouri. The plaintiff demanded a settlement, and the defendant, as he says, because he would have had trouble if he had not done so, gave the plaintiff his note for four thousand dollars, payable at one year, with six per cent interest, in settlement of the debt. The note contained a cognovit authorizing any attorney at law to appear in any court of the United States, waive process, enter appearance, and confess judgment against defendant for the amount due on the note, including interest and costs, and to release all errors. On the 14th of October, 1891, the plaintiff instituted suit against the defendant in the court of common pleas of Stark county, Ohio, upon the note. Pursuant to the terms of the note, W. J. Piero, an attorney of that court, entered the defendant's appearance, waived process, and confessed judgment for seven thousand and four dollars, the principal and interest due on the note, released all errors, and waived all rights of appeal. Thereafter, the plaintiff instituted this suit in the Barton circuit court on the foreign judgment. The answer of the defendant is a general denial, with special pleas: 1. That the 551 Ohio court had no jurisdiction, because defendant was and had been for over ten years a resident of Barton county, Missouri, and was not summoned, and did not appear in the Ohio court, and never authorized Piero or anyone else to appear for him, and that at the time the suit was begun in Ohio the debt was barred by limitation in Missouri; 2. That the parties are brothers, and the defendant, being in debt to the plaintiff, was about to remove to Missouri, and plaintiff asked defendant to sign a note for the balance due plaintiff, saying he only wanted a settlement and would never enforce the note against defendant; that defendant did not in fact owe the plaintiff as much as four thousand dollars; that he signed the note understanding that it was only a promissory note, and not knowing that it contained a provision authorizing a confession of judgment, and never having agreed to grant such

authority to anyone; that the plaintiff falsely and fraudulently represented to him that it was only a promissory note, and concealed from him the fact that it contained a cognovit, and that, relying on the statements of the plaintiff, he signed the note without reading it or examining it.

"The trial developed the facts to be that notes of this character are usually used in Ohio; that the defendant had been largely engaged in dealing in cattle while he lived in Ohio, and had executed many such notes, and that several judgments had been rendered against him there upon similar notes under the cognovit therein contained; that he had procured many loans from the banks upon similar notes; and that the banks would not make loans upon any other kind of paper; that he had given similar notes to other persons before leaving Ohio; that there were no representations made to him about the character of this note when he signed it, and no attempt made to conceal its character from him; that he owed his brother some amount, the brother says five thousand dollars, and he says it was not so 552 much, and that his brother offered to settle it if he would give him this note for four thousand dollars, and that he did so because, 'I expect I would have had to sign the note or got into trouble.'

"The court refused all the instructions asked by the plaintiff, and on its own motion instructed the jury as follows:

"You are instructed that your verdict will be for the plaintiff for the full amount of the judgment sued on, with interest on the same from October 14, 1891, to date, at the rate of six per cent per annum, unless you further believe from the preponderance or greater weight of the evidence that the defendant, at the time he signed the note upon which the judgment sued on is based, had no knowledge that the said note contained a power of attorney to confess judgment, and had no intention to sign such a note, in which case your verdict will be for the defendant.'

"The jury found for the defendant, judgment was entered upon the verdict, and after proper steps the plaintiff appealed. "1. There was no fraud, misrepresentation, trick, or concealment in the procurement of the note. It may be true the defendant did not read it before he signed it, but he was sui juris, had full opportunity to read it, and deliberately signed it. The law presumes he knew its contents, and he cannot be permitted. now to take advantage of his own fault or negligence: O'Bryan v. Kinney, 74 Mo. 125; Snider v. Adams' Express Co., 63 Mo.