22 Mich. 446 | Mich. | 1871
This was replevin brought by Brown against plaintiffs in error to recover possession of “one small two-roller belttightner, and one gear-cutter or cog-engine, except the index dial plate belonging thereto.” The case was tried on the general issue before a jury, and Brown recovered. The bill of exceptions contains the whole evidence, but the only questions which arise in the case are upon the charge and refusals. The facts are somewhat complicated, and the evidence, in several of its aspects, was conflicting, vague and ambiguous. Among other things, it tended to show that Brown and Dodge, one of the plaintiffs in error, were copartners in 1866, in the machine business, in Kalamazoo, and that some kind of a verbal arrangement was entered into between them that Brown should make certain patterns for a gear-cutter, and that Dodge should furnish the material and make the castings for the machine after such patterns. There was also evidence tending to show that Brown made the patterns for a considerable portion, if not
There was some evidence tending to show, that under the original arrangement between Brown and Dodge, the machine, when completed, was to belong to them jointly; and also that when Brown sold out to Dodge, the interest of the former, if any, in the castings passed to the latter.
There was also evidence tending to show, that before Brown sold out it Avas agreed between himself and Dodge, that the latter should let the former have the castings in consideration that Brown would cut certain gear on a lathe which Dodge was building, and that he afterwards performed such of this work as was furnished to him. There was likeAvise evidence tending to show that while Brown was finishing up the machine he was for a portion of the time, if not all, in the employment of plaintiffs in error, while
Both parties prayed specific instructions bearing upon their respective claims, and upon questions growing out of them.
. The defendants, who are plaintiffs in error, requested the court to charge, first, “That the owner of personal property wrongfully taken may pursue it so long as it can be identified,” and the court so charged, but added the following observations: “This is a rule of law which has long since been settled by the courts, and I call your attention to it, first, because there seems to be no controversy but that the property involved in the controversy, when in a crude state, was the property of the defendants or of the persons under whom the defendants now hold and claim title, which is the same thing.” Having given this direction as to the law and the state of the case respecting the former ownership by Dodge and his co-defendants, the Judge added, “That, then, being conceded, it is a question of fact for you to determine whether the title of the property thus spoken of ever vested in the plaintiff in this case, and if so whether the title to the whole of it vested. There íb evidence in the case tending to show that perhaps, while
If we leave out of view the case put by way of illustration, the plaintiffs in error have no ground of complaint on this point, whatever opinion may be entertained of the rule stated when abstractly considered. It is by no means certain that a charge, in the restricted and unqualified form of the request, would be warranted in a case of this description in the absence of any proof, as was the case here, which was the principal, the materials claimed by plaintiffs in error, or the work and materials, if any, of defendant in error. — Weatherbee v. Green, decided at this term. In some instances of artificial accession it has been held that the thing wrought upon should yield its place as principal to the operation performed upon the original material. Such, it is said, has been held to be the case where a picture was painted upon the canvass of another, and also where a poem was written or printed upon another man’s paper. But, I think, in the case before us, the objection of plaintiffs in error to the qualification added by the Judge, is answered by the verdict. By that the jury must be understood as negativing the right of plaintiffs in error on the ground stated in the request, and also on the ground stated in the
The case before the court appears to have presented an instance of whát some authors call adjunction, if the doctrine of accession, in any of its forms, was really involved. That implies a union where a thing belonging to one is attached or united to that which belongs to another, in such a manner as to form a whole and yet separable, so that one can subsist without the other. It is impossible to speak, however, with any positiveness on this point, since the evidence fails to show the extent and manner in which the materials provided by Dodge were wrought upon, or the way in which they were put together or adjoined with any materials, if any, provided by Brown. I think, in view of all the circumstances, the plaintiffs in error were not prejudiced by the inaccurate illustration made by the Judge. But if they were, the question is not essential to the disposition of the case.
The plaintiffs in error further requested the court to charge “ that the parties were not tenants in common in the machine, and even if they were, they being co-tenants, one could not maintain replevin against the other.” I think the refusal to give this charge was not error. There was some evidence before the jury tending to show that the parties had such a common interest in the machine as might, in our view of the facts, make them tenants in common. And the request, which was in the form of a.
In answer to a request for instruction by plaintiff below as to a delivery of the castings to him, the court so charged, ás to leave the jury to find that there was an understanding between the parties, by which Brown was authorized to take the articles from the premises of plaintiffs in error. I find no evidence in the case warranting this On the contrary, the whole drift of the evidence on the subject is in the opposite direction. The plaintiffs in error seem all along to have thought that the castings belonged to them, and that Brown had no right to take them, and he does not even intimate that he took them by permission or that there was any understanding that he might take them.
I think, therefore, that this instruction proceeded upon
The plaintiffs in error complain of remarks made by the court as to the nature of au estoppel. But it appears that, although something was said on this subject in reply to one of tbe requests by defendant in error, the Judge at the same time stated that it was not necessary to consider that.
Some introductory observations of the Judge to the jury are likewise complained of as indicating to the jury that it was of little consequence what verdict they found, or for whom they found it. I think, however, that the jury could not have so understood the remarks in question, and it is quite certain that nothing of that kind was intended.
I think the judgment should be reversed Avith costs, and a new trial ordered.