Bowen v. Fenner

40 Barb. 383 | N.Y. Sup. Ct. | 1863

Morgan, J.

The evidence fully j ustified the j ury in coming to the conclusion that the plaintiff was entitled to the use of the wheels at the time of the alleged conversion of the threshing machine by the defendant; and the question was fairly submitted to them by the judge. Assuming this fact therefore as sufficiently established, the only question that remains to be considered is, whether the conversion of the wheels was a conversion of the threshing machine; for it is too well settled to admit of question that possession under a general bailment, or even a gratuitous bailment, is sufficient evidence of title to entitle the bailee to maintain an action of trover against a stranger who intermeddles with the property. (Burton v. Hough, 6 Mod. 334. Roberts v. Wyatt, 2 Taunt. 268. Saunders on Pl. and Ev. 1151.) This being so, it necessarily follows that the defendant was guilty of a conversion of the wheels. The learned j udge charged the j ury that if the plaintiff was entitled to the wheels during the threshing season, to be used with the machine, and they were necessary to the machine.and to its use, and the defendant by artifice got the machine with the wheels into his possession and within his power, and then prevented the plaintiff from taking the machine off with the wheels, the defendant was liable as for a conversion of the machine. To this proposition there was an exception. • The defendant’s counsel then requested the judge to charge the jury that upon the evidence in this case, the plaintiff could only recover for the value of the wheels. The judge declined so to charge, and the defendant’s counsel excepted. It will be necessary, -therefore, to examine the evidence in order to dispose of these exceptions.

The plaintiff owned the threshing machine, and borrowed the wheels of one Glass to transport it from place to place. The wheels belonged to a wagon and not to the threshing machine, but were necessary in order to move the machine from place to place. The defendant was the father-in-law of Glass, and the wheels were to be left with him after the season for threshing was over. The defendant sent for the plaintiff to do his threshing, and after the machine was drawn, upon these wheels, into his barn, he notified the plaintiff that he did not want him to do his threshing, and that he should keep the wheels for his son-in-law, but that the plaintiff might take away his machine without the wheels. The pretense was, that Glass had only loaned the wheels so long as one Wheeler should continue in charge of the machine, and that the plaintiff had discharged him before this time. (This pretense was negatived by the verdict of the jury.) The plaintiff was therefore under the necessity of leaving his machine on the defendant’s premises until he could procure other wheels to carry it away. Instead of doing so, he brought this action to recover its value.

It is argued by the defendant’s counsel that this was not a conversion of the threshing machine, but at most it was only a conversion of the wheels; and he cites authorities to show that the plaintiff must prove that the defendant wrongfully converted the machine, before he can recover its value. While these authorities doubtless prove the proposition for which they are cited, they fail to show that the wrongful detention of the wheels was not also a wrongful detention of the threshing machine. It was said by Holt, Ch. J. in Baldwin v. Cole, (6 Mod. 212,) that whoever detains another man’s goods, without cause, takes upon himself the right of disposing of them. And this is cited with approbation in the elementary books as sufficient evidence of conversion. (Saunders on Pl. and Ev. 1158.) The wrongful detention of the wheels brought a charge upon the plaintiff in respect to the threshing machine: for it compelled him to leave it there until he could procure other wheels to take it away. This of itself was a conversion, according to the case of Syeds v. Hay, (4 Durn. & East, 260.) The intent of the defendant, not to deprive the plaintiff of the machine, but only of the wheels, is immaterial ; for though the defendant acted under a supposition that he was justified in what he did, he will be equally liable. (4 M. & S. 260. Saunders on Pl. and Ev. 1158.) It having been established by the verdict of the jury that the defendant had no right to detain the wheels, the charge of the judge was more favorable to the defendant than he had a right to claim; for the action was sustained without reference to the deception practiced by him to obtain possession of the property. It is unquestionably a conversion for a man wrongfully to stop a wagon on the highway, or to detain it before his own door, by taking off a wheel, under pretense that he or somebody else has a right to it. So, if he wrongfully detaches a horse from a wagon and takes the horse away, but leaves the wagon at a place where it will bring an additional charge upon the plaintiff, it is undoubtedly a conversion _ of both. However temporary the conversion may have been, it will suffice to render the defendant liable, (Saunders, on Pl. and Ev. 1156,) for a conversion that has once taken place cannot be cured. (Id.)

In my opinion the conversion was proved by the wrongful detention of the wheels, under the circumstances disclosed in the evidence, without regard' to the artifice practiced by the defendant to get the property into his possession. But the judge alluded to that in his charge, as one of the elements to make out a conversion of the property in this case; and as there was evidence from which the jury had a right to infer that the defendant was guilty of fraud in obtaining the possession, it may be well to remark that this was proper evidence to be submitted to the jury, although not necessaiy to establish the conversion in this particular case. It is unnecessary to decide whether the defendant would be held guilty of a conversion upon such evidence alone. (See Saunders on Pl. and Ev. 1157, citing 7 Taunton, 59; 1 B. & C. 514.)

In any view of the case, there was but one question necessary to be submitted to the jury, and about which there could Tbe any dispute; and that was whether the bailment was terminated when the defendant took possession of the wheels. That was fairly submitted, and the jury having found against the defendant on that point, there was nothing left upon which he could claim a verdict.

The exceptions must be overruled, and the judgment affirmed.

Allen, J.

There was evidence from the defendant himself that he induced the plaintiff to take the machine to. his house under the pretense that he wanted him to do his threshing, solely for the purpose of getting the wheels upon his premises and under his control and retaining them in his possession, and depriving the plaintiff of their use, and that having gotten the machine, on the wheels, in his bam, he did claim and exercise the right to retain the wheels as the property of Glass. This, as to the wheels, was such an act of dominion and control in hostility to the claim of the plaintiff, accompanied as it was with a refusal to suffer the plaintiff to take the wheels or use them for any purpose, as to lay the foundation for an action of trover, if the plaintiff, either as general or special owner, was entitled to the possession of them. (Fouldes v. Willoughby, 8 Mee. & Wels. 540.) This is not disputed by the defendant. There was evidence for the jury that the plaintiff had the right to the use of the wheels with the machine till he got through threshing, that fall; that he had paid #175 “for the machine, horse power, belts, saw and use of wheels,” and the verdict of the jury sustains the claim of the plaintiff, to this extent. Threshing machines are used by and made profitable to the owners by being taken from place to place wherever employment in threshing is tendered and can be had; and they are placed and remain on wheels while being used, and this is for the convenience of threshing and transporting. This is the testimony of the defendant’s witness or principal, Glass. The evidence also was that these wheels were not made for and did not belong to the machine, but were a part of a wagon owned by Glass, but they fitted the machine and were used with it, and pro hao vice, constituted a part of it. It was also proved that any other wheels with hubs of the right length would have answered equally well. This is only saying what would be true of any vehicle used with wheels, that any wheels that will fit the axle will answer all the purposes of those designed and made for it. The same is true of the different parts of any, even the most complicated, machinery. Still it would not, I think, be any defense to an action of trover for a wagon, that although the defendant had wrongfully taken and converted the wheels, the injured party could fit other wheels to it. It would be the exercise of dominion over a constituent part of an entire thing, which, as it deprived the owner of the use and enjoyment of the whole, would subject the wrongdoer to the same action for the whole which would lie for the part over which he exercised dominion.

Here the plaintiff could only possess himself of his machine and remove it from the defendant’s premises and possession by incurring an expense and after a delay and loss of time, to which the defendant could not by his wrongful act'subject Mm. The defendant cannot ask the plaintiff, in order to relieve him from the consequences of his wrongful act, to step aside or incur a shilling of expense. The plaintiff may test his right to the property in the condition in which the defendant has placed it.

The case is within the principle laid down by Buffer, J. in the case of Syeds v. Hay, (4 T. R. 260.) Landing goods upon a wharf, against the orders of the owner, by reason whereof the latter was subjected to the payment of a wharf-age duty, was held to give an action of trover against the captain so landing them. Buffer, J. in illustrating the subject says: “If one man who is intrusted with the goods of another puts them into the hands of a third person, contrary to orders, it is a conversion. If a person take my horse to ride and leave him at an inn, that is a conversion; for though I may have the horse, on sending for him and paying for the keeping of him, yet it brings charges on me.” So here, upon the finding of the jury, the plaintiff, to regain possession of his machine, was wrongfully put to the expense of getting other wheels. (And see Murray v. Burling, 10 John. 172; and Farrar v. Chauffetete, 5 Denio, 527.) The case was carefully submitted to the jury under the charge that the plaintiff could only recover in case he was entitled to the wheels, and that they were necessary to its use, and the defendant, by artifice, got the machine with the wheels into his possession and then prevented the plaintiff from taking the machine with the wheels. The charge was as favorable to the defendant as'he could ask. It was, in the language of Lord Abinger, C. B. in Fouldes v. Willoughby, (supra,) “exercising over the property (machine and wheels) a right inconsistent with and adverse to the rights which the plaintiff had in it,” the absence of which, in the case cited, led to the decision in that case.

[Onondaga General Term, December 22, 1863.

The judgment should be affirmed.

Bacon, J. concurred.

Mullin, J. dissented.

Judgment affirmed.

Allen, Mullin, Morgan and Bacon, Justices.]