24 S.E. 364 | N.C. | 1896
There was verdict for the plaintiff, and the defendants (480) appealed from the judgment. The cargo of the schooner in question was sold at public sale, and the terms were that the purchaser was to have thirty days to remove it, and there were no other terms. The schooner, then fast to the wharf in Wilmington, was sold to the plaintiff, subject to the terms of the sale of the cargo. The defendant, purchaser of the cargo, without plaintiff's permission, removed the schooner one *294 or two miles down the river for the purpose of unloading, and she was caught in a storm and damaged.
Defendant insists that by the terms of the sale he had the implied right to remove the boat to a more convenient place for unloading, and his Honor told the jury, if they believed that he removed the boat for such purpose without plaintiff's permission, he was liable for the damages. In this we see no error. The right to enter the boat at the wharf within thirty days and remove the cargo was not an implied license to remove the schooner to another place for convenience and unload. It was not a necessity, but was the abuse of a legal (481) license, and made the defendant a trespasser ab initio. The argument was made that if the schooner had remained at the wharf the damage would have been as great or greater by reason of the storm. Non constat that such would have been the result, and there is no evidence that it must have happened. The defendant cannot qualify his wrong in that way and insist on the possibility of a loss if he had not exceeded his privilege. Davis v. Garrett, 6 Bing., 716; Gardner v. Rowland,
No Error.
