Davis v. Emery, 11 N.H. 230

Davis v. Emery

11 N.H. 230 | Superior Court of New Hampshire | 1840

Ufham, J.

Sales of property are frequently made in the mode attempted in this case, and it is important that the respective rights of the parties to contracts of this description should be distinctly understood. Such contracts, where they are fairly entered into, and on reasonable terms, may afford a convenient means of purchase of property by those who are unable to advance at once its full value. But to make it a contract at all available for the benefit of the proposed purchaser, he must have important rights under it, as well as the ownej- of the property, and should have a liberal opportunity to complete any purchase contemplated by the parties.

By the terms of the contract in this instance betwixt the plaintiff and Sawyer, Sawyer was to take the cow, for the conversion of which this action is brought; but it was to remain the property of the plaintiff until it was paid for at a stipulated sum ; ten dollars of which had been paid before the conversion complained of.

*233This contract was such on the one hand that the owner might lose all claim for the use of the property, in case no payment was made; and, on the other, if the bailee paid any considerable sum it would either ensure the sale of the property ; or, if not, might give great profits for its use ; while the property, until paid for, would belong entirely to the original owner.

While these advantages on the side of the plaintiff exist, the corresponding advantages on the part of the individual receiving the property should be fully asserted. We believe he has this advantage at least. He at once enters into possession of the property, with a view to a purchase, and with a right of purchase, at any time before it shall be reclaimed by its owner. He is not then a mere naked bailee of the property, but acquires such aright of possession that it can be divested from him only after demand, and a reasonable time is allowed to complete the contract, by a full payment of the original sum proposed, or of any balance which may be due.

Any arbitrary removal of the property, without such demand and a reasonable opportunity allowed for this purpose, would be a violation of the rights of the holder of such property. In this case no demand was made of Sawyer, and no reasonable opportunity was allowed, after the plaintiff elected to reclaim the property, for Sawyer, on notice of such election, to take the necessary measures to secure to himself the benefit of the contract, or to surrender the property.

Demand was made of the defendant, with whom the cow was placed by Sawyer to be kept; and, because immediate possession was not given, this action of trover was forthwith brought against him ; and we hold that it is not sustainable under such circumstances.

The defendant claimed to retain the cow, on the ground that he had a lien upon her for her keeping. But it is unnecessary to determine this point, or how far the English doctrine as to agisters of cattle, if adopted here, be held to apply to cases of this kind. This is unnecessary, because the *234reason assigned by the defendant for retaining the property becomes wholly immaterial until the plaintiff can show a right in himself to reclaim the property, which he cannot do until after a demand upon Sawyer, and a reasonable notice is given him to surrender the property or perfect his title ; or, at least, until the defendant has had time to consult Sawyer and give him such reasonable notice. This not having been done the plaintiff is not entitled to the possession of the property. The verdict, therefore, must be set aside, and

Judgment entered for the defendant.