108 Pa. 595 | Pa. | 1885
delivered the opinion of the Court-March 30th, 1885.
Hurst, Rutter, Sellers and John Cover purchased the portable saw mill in 1871, and engaged in the manufacture of lumber. Within the same year Sellers and Hurst sold their interests to George W. Cover, and early in 1872 Rutter sold his interest to John Cover, who, soon after, sold one half interest in the mill to Jacob Rist. On October-12th, 1872. Rist’s in
Nor was it error to refuse the defendants’ third point. The evidence was sufficient to justify a finding that George W. Cover and Rist were partners, but not that they owned the mill as partnership property. There seems to have been numerous short-lived partnerships engaged in the sawing of lumber with this mill, and all along the parties treated the mill as if owned by them as tenants in common. In no instance was -it taken into the account or settlement of any of the successive partnerships.
The portion of‘the charge set out in the fourth assignment, with its context is not erroneous. The words, “we instruct you that that is true in this case,” evidently related to the proposition that the defendants, having sold the whole mill, must account to the plaintiff for his interest, not that it was true that the defendants bought of George W. Cover only one half interest. What each party claimed was fully stated by the Court, followed by this instruction: “ If you find from the evidence that the plaintiff had a half interest in that mill and that the defendants sold it and received the money for it, then the plaintiff would be entitled to recover the one half of whatever they sold it for, with its interest down to the present time from the date of sale. If you are not satisfied that he had a half interest, or any interest, or satisfied that he acquiesced in the sale made by his brother, then he would not be entitled to recover as against these defendants.” That submission was explicit and free of error.
The remaining assignment is to the refusal of the Court to charge, that if the defendants bought and took possession of the mill in November, 1872, and claimed and used it as their own until they sold it in 1877, the plaintiff’s action, brought in 1879, is barred by the Statute of Limitations. Where parties are joint owners of a chattel the right of each to the possession is equal; and if one. sell the chattel the sale passes to the
The mere fact that the defendants bought the mill, took possession and used it as their own gave the plaintiff no right of action against them, for the possession of one tenant in common is the possession of all. The plaintiff was not bound to elect to pursue George W. Cover. He had no right of action against the defendants until they sold the property as exclusively their own. Their second point was properly refused.
Judgment affirmed.