9 N.H. 243 | Superior Court of New Hampshire | 1838
This case is not put on the ground of a fraudulent sale of the property by Goin to the plaintiff, but it is contended that, at the time the property was taken, Goin was a bailee for hire, for a given period, which was unexpired; and, that until the expiration of such time, the plaintiff, or general owner, had no right of action for the property.
This position is well sustained in law, provided the facts show a bailment of that description. 7 D. & E. 9, Gordon vs. Harper; 15 East 607, Smith vs. Plomer; 2 Taunt. 268, Roberts vs. Wyatt; 3 Pick. 255, Wheeler vs. Train. Unless the bailment be terminated by some wrongful act of the bailee, as in Sanborn vs. Colman, 6 N. H. R. 14.
The first question, then, for consideration is, as to the time of the bailment: whether it was a bailment from year to year, or was to terminate at the pleasure of the bailor. The agreement was that the bailee “ was to keep the cow till called for, and was to pay a fixed sum by the year for the use of her.” This is a bailment for hire ; but the time of its
In each of these cases the election of the party to terminate the bailment, or hire, is so distinctly provided for, that we think it cannot be overruled, except the necessary construction of the subsequent clause in the agreement compels it. The provision that payment of a given sum shall be by the year, may very readily admit of the construction that it is to be after that rate per year. A note payable on demand, with a given sum of interest annually, could hardly be said to be payable only at the end of the year.
The latter portion of the agreement, as to payment, in the case now in suit, does not necessarily overrule the express provision that the property was to remain “until called for,” We hold it, therefore, to have been a mere bailment, to terminate at the option of the plaintiff.
On such construction the question then arises, whether the plaintiff may at any time commence a suit against a stranger for wrongful acts to property thus bailed ?
The bailment, though for hire, is strongly analogous to a gratuitous loan of an article of property, which may be terminated at the option of the bailor.
Where the loan is merely gratuitous, trover will lie in favor of the owner against the wrongful acts of a stranger, because the bailee is considered in such cases as the mere servant of the owner; and, in contemplation of law, the owner has the possession as against a wrong-doer. 2 Camp. 465, Lotan vs. Cross; and this may he well holden, though trover will not lie against a bailee on a gratuitous loan until after demand
We see no rule why a letting for hire, where the bailor has a right to call for the property at any moment, should cause any different rale as to a right of action. In Story on Bailments 262, it is said, “ that the bailee for hire has a spe-1 cial property in the article hired, while the contract con- ‘ tinues, and may maintain an action for any tortious dispos-1 session of the property ; but in such case the owner has also ! a general property, unless he has, by virtue of his agree- ‘ ment, parted with it for a time ; and may also maintain a ‘ like suit against a stranger.”
The hiring is not considered by this authority as precluding a suit in favor of the owner, unless it be for a term. When the property is not put out for a term, but may be resumed at any time by the bailor, we understand it to be conceded that the owner has the general property, and may maintain trover.
In Hart vs. Hyde, 5 Vt. R. 330, it was holden, that where the owner of a stove had leased it, for a reasonable compensation, to a third person, until he should call for it, and it was taken away by a third person from the bailee, trespass would lie by the general owner, because he had the right of resuming the possession at pleasure.
We see no objection to this decision ; and it is directly in point that trover will lie in favor of this plaintiff.
In this case the conversion of the property commenced with the original taking from the bailee ; and the measure of damages to be recovered is the value of the property at that time. There is no evidence of such a return of the property as to affect the damage in any manner.
There will, therefore, be judgment for the plaintiff for the value of the property at the time of the conversion, as agreed upon.
Judgment for the plaintiff.
