54 Barb. 417 | N.Y. Sup. Ct. | 1866
By the Court,
Hpon the foregoing facts and verdict, the plaintiff moved at the last general term for judgment for $200 damages. This motion was resisted by the defendant, who demands judgment in his favor, for costs.
. Although all forms of action were abolished by the Code, the principles by which the different forms of action were previously governed still remain, and now, as much as
In this case, the complaint charges an unlawful taking and conversion. For an unlawful taking the remedy would formerly have been trespass; but for an unlawful taking and conversion the action would have been trover. It has often been said that trover would lie wherever trespass could be maintained; that, however, was not quite correct, because trover could not be maintained unless there. was some act amounting to a conversion; while trespass could be sustained for any unlawful touching, or taking. The present, judged by the rules of practice and pleading before the Code, would be an action of trover; and it could not be sustained without proof of a detention or conversion of the property alleged to have been unlawfully taken, (Fouldes v. Willoughby, 8 Mees. & W. 540;) but as the forms of pleading do not now control, we must examine the evidence, and if the proof or facts found by the jury entitle the plaintiff to a judgment, such judgment should be given him, even though not asked for by the complaint.
Upon the facts, two questions arise: Was there any unlawful taking of the property in dispute ? Was there any conversion of such property ?
In considering the first point, it is proper distinctly to understand the subject matter of the action, the acts complained of, and the relation of the parties to the subject matter, to each other and to the act. The subject matter was a buggy wagon, the act a temporary removal from one wagon shop to another for repair, and its immediate repair and return. The parties had been bailor and bailee of the subject matter; it had been injured during the
In this case, the acts and the demand of the plaintiff warranted Hall in believing that he was to be held responsible for the use of the buggy during its repair, as well as for its repair; and there being no demand for specific damage, or place of repair specified, it was a fair inference from the facts that Hall had liberty to get it repaired where he pleased, and as soon as he could. His acts in removing, the buggy with the defendant’s aid, and returning it in a few hours repaired, is consistent with this view; it shows Hall so understood it, and acted upon such understanding.
In this view the plaintiff has established no cause ot action, and judgment should be given for the defendant, notwithstanding the verdict.
But suppose the foregoing conclusion wrong, and that the removal- of the buggy for repair was a wrongful act, then will arise the second question, “ Was there a conversion of the property ?”
It is certain there was no conversion, or intent to convert, in fact. The properly was taken from one mechanic shop to another for repair, immediately repaired and returned to the plaintiff’s premises; and although he refused to receive it, it remained, with him at last accounts.
But it is claimed the taking being unlawful, that of itself constituted a conversion. To sustain this position the
This case is more like that of Fouldes v. Willoughby, (8 Mees. & Wels. 540,) where the defendant, having charge of a ferry boat, after the plaintiff* had paid the fare for himself and two horses, the defendant, for some misconduct, told the plaintiff to remove his horses from the boat, as he would not carry them; the plaintiff refused, and the defendant tpok them from the plaintiff and put them on shore; the defe'ridant remained on board and was carried over the river. On the trial, at nisiprius, the judge charged “ that the defendant, by taking the horses from the plaintiff, and turning them out of the vessel, had been guilty of a conversion.” The Court of Exchequer on a rule to show cause, held the charge wrong, “ that the mere wrongful asportation of a chattel did not amount to conversion, unless the taking or detention of the chattel was with the intent to convert it to the taker’s own use, or that of some
The defendant in this case was guilty only of a mere asportation of the buggy; he did not interfere with the plaintiff’s dominion over the buggy; his title was recognized and acknowledged throughout; it was not taken or detained with the intent to. convert it to the defendant’s
In this view, even the cause of action set forth in the complaint wholly fails, “ as no damages are recoverable in the form of trover for the simple act of taking.” (Cooper v. Chitty, 1 W. Black. 65. Bushel v. Miller, 1 Strange, 128.) But as all forms are abolished, the action must stand or fall upon the facts proved. If it were conceded that the defendant was guilty, of technical trespass, the question would only be one of damages. Even in that view the plaintiff claims to recover the full value of the buggy, by the jury fixed at $200. ' There are several reasons why he should not recover that amount. He had but a special property in the buggy, a bailment for a year; and it not having been converted, the general owner, at the expiration of the bailment, could follow and take it wherever found, as this action would be no bar to his rights. There was not only no conversion, but a return of the property was made before suit brought, and the plaintiff’s refusal then to accept only entitled him to recover the value of' his general property. In Brierly v. Kendall, (10 L. and E. Rep. 319,) goods had been left as security for a debt, to be void on payment of a.specified sum by a certain day, the assignor to have possession until default; before default the goods were seized and sold. Held that bailor could maintain trespass, and that his measure of damages was not the value of the goods, but his limited interest therein. In this ease there was no proof of the value of the special interest of the plaintiff in the buggy, and this court cannot assume it to be over six cents.
In my view of the case there was an implied license to Hall and the defendant to do precisely what they did do ;• and judgment should, therefore, be given for the defend
Judgment was directed for the defendant.
Bockes, James, Rosekrans and Potter, Justices.]