13 Wend. 139 | Court for the Trial of Impeachments and Correction of Errors | 1834
The following opinions were delivered:
In the case of Reab v. M'Alister, in this court, 8 Wendell, 112, I stated the reasons which had induced me to suppose that the legislature, in the revision of 1813, intended to change the law of set-off in courts of record, so as to authorize the setting off of unliquidated demands arising on contract, to the same extent that such set-offs were allowed in justice’s courts. That by adopting similar language to that which had previously existed in the justice’s act, and which the supreme court had decided was sufficient to authorize the set-off of an unliquidated demand in a justice’s court, the legislature intended the general provision as to set-offs in courts of record, contained in the revised act of 1813, should receive the same construction—and I have not seen any thing since to induce me to alter the opinion which I then expressed. That case, however, was disposed of by this court on other grounds. The question as to the right to set-off an unliquidated demand, under the act of 1813, which remained in force when this suit was commenced, in December, 1829, is therefore still an open question here. But if a majority of this court shall concur with me in the conclusion at which I have arrived upon other parts of this case, it will not even now be necessary for us to give a construction to the act of 1813; and it is hardly probable that another case will ever arise in which a decision of that question can become necessary for the determination of the court. It will be impossible, however, to, reverse the judgment of the supreme court, unless a majority of the members of this court should arrive at the conclusion
Nor do I consider it necessary in this case to decide what is the precise nature of the possession of a mere receiptor of goods taken by the sheriff upon an execution, while such goods remain constructively in the custody of the law. He has not such a general or special property in the goods as will enable him to recover in trover oxreplevin, in which actions the property in the goods is drawn in question. In trover or replevin, it is a good defence to the action that the plaintiff has neither the general or special property in the goods ; but in an action of trespass, abare possession is sufficient to enable the plaintiff to recover against a wrongdoer, who takes the property out of his possession without authority. Cook, v. Howard, 13 Johns. R. 276. Demick v. Chapman, 11 id. 132. Schermerhorn v. Van Valkenburg, id. 529. Aiken v. Buck, 2 Wendell, 466.
As I understand the evidence in this ease,. Butts was the agent of Underhill, the defendant in the execution, andas such agent, agreed with the sheriff to have the manufacture of the goods completed before the sale upon the execution. It is evident also, that neither the sheriff or the plaintiff in the execution, or those for whose benefit the judgment was confessed, ever intended to relinquish the lien of the execution upon, the goods. The sole object of the arrangement appears to have been to prevent a sacrifice of the property, which must have occurred if it had been sold in its unfinished state. For this purpose the defendant, acting as the agent of Under-hill, against whom the execution issued, undertook to have the materials levied on, manufactured into flannels, which were then to be sold on the execution, and the avails, after satisfying the defendant for such expenses as he had personally incurred or become liable for in the finishing of the
By Mr. Senator Maison. It is contended that Butts was merely a receiptor, servant, agent or overseer, or a mere naked depositary or bailee in this matter; that he has not such an interest in the flannels as would authorize him to maintain any action, either for an injury done to them, or on a contract concerning them, and that such action could only be maintained in the name of the sheriff, his principal, and that therefore he has no right to set off. I cannot view this case in that light. By the contract, which is supported by a consideration of mutual promises, and the expenditure of means and labor in converting the raw material into a fabric, Butts became vested with a right and interest in the property, beyond what any. receiptor, servant or agent as such has ; he became responsible to the sheriff and the parties in interest, that the
Butts, in performance of his contract, employed Martín and Andrew, and, through Martin, Collins, to work upon these flannels, to each of whom, it is admitted, he became and was personally responsible for their labor; but it is contended, and so it is viewed by the supreme court, that such personal responsibility accrued, because Butts did not disclose the name of his principal. Who is the 'principal, and where is the evidence of agency 7 This idea of agency seems to be based upon the testimony of the witness Andrew, who testified that when he called upon Butts for his pay, Butts presented an account of J. J. Underhill against him, and wished to apply his labor to that account, and told him he was agent for Underhill. The supreme court apply this remark of Butts as to his agency, to the manufacturing of the raw materials into flannel, under the contract he made with the sheriff and the parties in interest in the execution. I do not so understand his testimony. Underhill left Hudson and moved to Auburn in May, 1829, and failed in August therafter. After his failure, he sent to Butts his unsettled accounts for collection, and among them an account against Andrew, and gave to Butts a power of attorney to settle his unfinished business. Because Butts was the agent of Underhill for the purposes men
It is objected that there is no evidence that Butts furnished, the one hundred weight of wool, which was used in the manufacturing of the flannels, and which did not belong to Under-hill. The fair inference from the case is, that he did furnish this wool by himself, or by Andrew, his workman. Underhill had become insolvent, and had moved away, and no one was under obligatins to furnish materials to complete the manufacturing of these flannels, or authorized to do so, but Butts; and there is no pretence or evidence in the case that any other person did. Martin testifies, that some of the flannels were made of-the wool left by Underhill, and Andrew testifies that the 62 pieces in question were manufactured from yam and materials which were in the factory at the time of Underhill’s failure, and which b( Ion ;ed to Underhill before his failure,except about one hundred weight of wool. The question put to Andrew upon the trial, by the counsel of Collins, “were the four bales of flannels that were finished by Collins, and returned to Butts, full as much as the thirty-six pieces which Butts owned, and the stock he furnished,” indicates that Butts furnished some stock, and there is no pretence that he furnished any other or additional quantity of materials or stock than this one hundred weight of wool; and indeed it has been contended here, that in the four bales which had been delivered to Butts, there was an excess of 592 yards more than was contained in thirty-six pieces which belonged to him, and that so he was compensated for the wool he furnished. I am satisfied Butts furnished the one hundred weight of wool.
On examining the cases to which reference has been made with a viewof fixing the character of Butts as a mere receiptor I do not find in any one of them a case where the receiptor was in fact any other than a mere servant, or a naked depositary. The receiptors in those cases were not to use the property put into their charge; they were not to be paid any thing for their trouble in talcing care of it; they were not at liberty, nor under contract to change its character, with a view of making it more valuable ; they were under no obligation to take greater care of it than of their own property, and they were responsible only for gross negligence. See the cases of Ludden v. Leavitt, 9 Mass. R. 104, Commonwealth v. Morse, 14 id. 217, Barker v. Miller, 6 Johns. R. 195, Edson v. Weston. 7 Cowen, 280, Norton v. The People, 8 Cowen, 137, and Philips v. Hall, 8 Wendell, 613. The principle settled in these cases is, that a receiptor is a mere servant or agent of the sheriff, and having no property or interest in the goods, cannot maintain trover for them; and yet his promise to return, or deliver the goods to the sheriff when demanded, is founded on a good and sufficient consideration, is obligatory upon him, and may be enforced. Were there no adjudged cases holding a different doctrine, I should feel myself bound by the above decisions ; but there are such cases, which acquit the law of the absurdity and injustice of holding the receiptor liable to the sheriff for the value of the goods, and yet refusing him its aid or protection, in enabling him to recover the value of the goods from the person who obtains the possession—to declare him responsible, and yet powerless in the protection of his possession, by which that responsibility is to be redeemed. It was conceded on the argument that a receipt- or could maintain trespass against a stranger, for interfering with or violating his possession, and the case of Burrows v.
Trover and trespass are, in a variety of cases, concurrent remedies, both being founded on a former possession. 1 Ch. PI. 169. Tresspass is the appropriate remedy, where the taking has been forcible, or tortious, or without the consent of the possessor. Trover is the appropriate remedy, where the party has lost his chattels, and the finder or those holding under him refuse to deliver them ; or where a party has parted with his possession to another voluntarily for a limited time, or for a particular purpose, and that other afterwards refuses to redeliver. In the one case a jury would in many instances be justified in awarding smart money, an amount larger than the value of the goods and interest, by way of punishment and an example for a wilful wanton violation of right; while, in the other, only the value of the goods and interest from the time of the conversion would be awarded, on the ground that the party came rightfully into the possession. Trover is, in some cases, a possessory action, and in others an action for the trial of the title to the property in controversy.
I hold the rule to be, that a receiptor can maintain trover against all persons, except the officer from whom he received the property—his possession gives him this right—and that such has been considered the law, not only in this state, but also in Massachusetts, by well considered adjudications, made both before and since the decision of the case of Ludden v. Leavitt, 9 Mass. R. 104, which is relied upon as settling a different rule. In the case of Waterman v. Robinson, 5 Mass. R. 303, which was before the case of Ludden v. Leavitt, it appears that the household furniture of one Lucas was seized by a messenger from the commissioners of bankruptcy, who delivered them to the plaintiff, taking his obligation to keep them safely and to deliver them on demand. The plaintiff placed the goods in the possession of Lucas’ wife, who was
The case of Eaton and another v. Lynde, 15 Mass. R. 242, (which was after the case of Ludden v. Leavitt,) in its principal features, is like the case at bar. In that case, Slater & Co. delivered a quantity of yarn to the plaintiffs, upon an agreement that they should procure it to be wove into cloth, and for which they were to be allowed a commission. The plaintiffs delivered the yarn to one Benson, to weave for a stipulated price, which the plaintiffs were to pay in goods from their store. After Benson had wove the yarn into cloth, a creditor of Benson attached it as his property. It was there contended that the plaintiffs had no property at all in the yarn, or in the cloth made therefrom, and the only question submitted to the court was, whether the plaintiffs had such a property in the yarn as would warrant trover; and the court were of opinion that, as they had received the yarn and had undertaken to have it woven into cloth upon a commission to be paid them by Slater & Co. the special property was in the plaintiffs, and gave judgment accordingly. If the plaintiffs in the case last cited had a special property, then much more has the plaintiff Butts in this case a special property ; for, in addition to the undertaking to convert the yarn into cloth or flannel, Butts had agreed with the parties in interest in the execution, both plaintiff and defendant and the sheriff that he would furnish whatever stock should be necessary to finish the manufacture of the flannels ; and he did accordingly furnish one hundred weight of wool, which went into the mass of raw materials out of which the flannels were manufactured. The undertakings and responsibilities of Butts, assumed upon sufficient consideration, and which -are never assumed by a mere servant or receiptor; invested him with rights and interests which no mere receiptor ever
With a view or further testing the right or interest of Butts in these flannels, it is contended that Collins, in an action of trover against him, couldpleadthat the title to the prop ertywas in another person. It has already been shown that trover is a possessory action, and can be maintained by him who had the mere possession. But let us inquire. Should Collins plead the title of the property to be in J. J. Underhill, he would be met with the answer, that his ownership was suspended until the execution was satisfied, and the sheriff’s title is paramount so long as the execution remains unpaid, or that he, Butts,holds and-claims under Underhill. Should Collins plead title in the sheriff, it is Butts that holds under the sheriff, as well as under Underhill, in virtue of his contract. Collins cannot be admitted to allege or prove title to these flannels in another; he received the property of Butts, under a contract made with him, through Andrew, Butts’ agent, to manufacture it into flannels. The act of receiving the property, under the circumstances, is an admission on the part of Collins that
The supreme court, in the case at bar,"say, there is no other interest in personal property, except a general and special property. This is conceded. It is also urged in the argument here, that a special property in goods is indivisible. Granted ; but the special property may be at one time in one person, and at another time in another person. Thus, the general owner puts his goods into the possession of A. for use, and afterwards to be transported to a distant place. A. has the special property. He sends the goods by B., a common carrier, by land; B. has now the special property. B. sends the goods by C., a common carrier, by water; C. has now the special property, and he loses the goods, converts them to his own use, or makes any other wrongful disposition of them. Is not C, liable to B., and B. to A .1 Most unquestionably; and such liability exists upon no other principle than as between B." and
The remaining question is whether Butts can legally set off his claim to the flannels, in an action for work and labor, brought by Collins against him. It is a well settled rule, that a demand sounding in tort cannot be set off to a demand sounding in contract, and vice versa. It is also well settled,
It is however objected that Butts could not be allowed his set-off \ because he could recover beyond the value of the flannels ; and so the demand was unliquidated. This objection was made upon the assumption that Butts’ only remedy against Collins, if any he had, was either in trespass or by a special action on the contract. In assumpsit, the value ofthe flannels only are recoverable. Lord Mansfield, in delivering the opinion ofthe court in the case of Lindon v. Hooper, 1 Cowp. 419, remarked ofthe case of Feltham v. Terry, (a manuscript case,) that it was for goods taken in execution, and sold under a warrant of distress upon a conviction. The conviction was quashed,consequentlytherecouldbenojustification. Theplain tiff, by bringing his action for money had and received, could only recover the money for which the goods were sold. But if trespass had been.brought, the plaintiff might have recovered damages far beyond the money actually received from the sale ofthe goods. And Mansfield, chief justice, in Lightly v. Clouston, above cited, encouraged the election ofsuing in assumpsit, rather than in tort; observing that the practice is beneficial to the defendant, because a jury may give in damages for the tort a much greater sum than the value of the goods. It is well settled that mrcextamunliquidateddamagescaimot beset off to a demand certain; nor a demand certain to a claim for unliquidated damages; nor unliquidated damages against . unliquidated damages. But what are uncertain, unliquidated damages? They are such as rest in opinion only, and-must be ascertained by a jury, their verdict being regulated by the peculiar circumstances of each particular case ; they
I do not think there is any thing in the objection that there was no evidence that the flannels had been finished, or that Collins had been satisfied his lien for manufacturing them; it is to be inferred that the flannels had been finished. There is testimony in the case showing-that Butts and the deputy sheriff went to Collins to retake the flannels; the deputy sher
On the question being put, shall this judgment be reversed 1 the court divided—ten members voting in the affirmative, and thirteen in the negative. Whereupon the judgment of the supreme court was affirmed.