50 N.C. 107 | N.C. | 1857
The plaintiff declared for the conversion of a horse.
A witness, by the name of Reich, stated that the horse in controversy had belonged to him, and being indebted to one Ledford in the sum of $100, with the plaintiff as his surety, he agreed to sell the horse to plaintiff, and work out the residue of the $100, upon condition that plaintiff would assume, as principal obligor, the payment of said debt, and thereupon, the horse was claimed and used as the plaintiff's. He further swore, that he was himself in the service of the plaintiff, and wishing to visit a relation, at a distance of a few miles, he borrowed the horse to perform the trip, promising, and intending, to return in the course of a day or two. While gone upon this visit, he swapped the horse away to the defendant without any authority from the plaintiff, and when he returned with the horse he got from the defendant, the plaintiff refused to accept him in lieu of the other. He swore the horse was worth sixty-five dollars, but no price had been agreed upon between himself and plaintiff, the price being *108 left to be determined by the sum which the plaintiff might realize in his sale. A demand was made of the defendant a few days after the swap, which was refused.
The defendant's counsel, among other things, contended, that it was a mere pledge of the property to secure the plaintiff against responsibility, and the thing pledged, having been redelivered to the person making the pledge, he had a right to sell and make title.
His Honor, upon this point, instructed the jury, that if the horse werepledged to secure Bodenhammer, and in conformity with the pledge, passed into Bodenhammer's possession, he would have such a property in the animal as would enable him to maintain the action of trover, and a loan of the animal to Reich for a special use, under the circumstances stated by him, would not be such change or interruption of possession as to prevent a recovery, provided the pledge and possession were bona fide in Bodenhammer. Defendant excepted.
Verdict for the plaintiff. Judgment and appeal. Among the instructions given by his Honor to the jury, was the following: "If the horse were pledged to secure the plaintiff, and, in conformity with that pledge, passed into the plaintiff's possession, and continued in his possession, he would have such a property in the animal as would enable him to maintain the action of trover; and a loan of the animal to Reich for a special use, under the circumstances stated by him, would not be such a change or interruption of possession as to prevent a recovery, provided the pledge and possession were bona fide in the plaintiff." With this instruction we do not agree, and we think it is opposed, in principle, to the recent case, decided in this Court, of Smith v. Susser, 4 Jones' Rep. 43. The only difference between the facts of that case and the present, is the length of time during which the pawnor had the article in possession, *109 after a redelivery by the pawnee, before he sold it. But that cannot make any difference in the rule of law applicable to the transaction. By giving up the possession of the article pawned, the pawnee lost his lien, and it would be a fraud upon an innocent purchaser from the pawnor, if the pawnee were permitted to recover the pawn from him. In the case of Roberts v.Wyatt, 2 Term Rep. 268, it was made a question whether, even as between the parties themselves, a redelivery of the thing pledged, for a temporary purpose only, would not prevent the pawnee from recovering it back from the pawnor, after the purpose was fulfilled. It was, indeed, decided that the pawnee might recover from the pawnor; but if a doubt existed in such a case as that, it would hardly be pretended that a recovery would be allowed from one who claimed as a bona fide purchaser from the pawnor. See Story on Bailments, sec. 299.
The judgment must be reversed, and a venire de novo awarded.
PER CURIAM, Judgment reversed.
