6 Wend. 603 | N.Y. Sup. Ct. | 1831
By the Court,
It was proved by competent and sufficient evidence, that the plaintiff was the owner of the properly in question. The bill of lading itself, as against Collins, for whose benefit the defendants received and disposed of the property, would be prima facie sufficient to establish the title of the plaintiff. The bill states that the lead was received by Bridge & Vose on account and risk of Mr. Otis Everett of Boston. In addition to this, we have the letter of Bridge & Vose, (by whom the lead was shipped at New-Orleans, and in whose possession it of course then was,) addressed to the consignees, Tufts & Co., in which they distinctly state that the lead belonged to Mr. Everett, directing them to receive and obey his instructions respecting it. I perceive no objection to the competency of the letter as evidence. It is an admission of Bridge & Vose, who are to be considered the legal owners of the property previously to its
That the lead received and disposed of by the defendants, Was a part of the lead shipped by Yose & Bridge, and which is shewn to have belonged to the plaintiff there can be no reasonable doubt, upon the evidence in the case.
The evidence of demand and refusal was sufficient, under the circumstances of the case. One of the defendants - admitted to the witness Tufts, who went to ascertain what had become of the lead, that it had come to their possession, that they had sold it and received the money for it. A more formal demand, after such an admission, was not necessary. La Place v. Aupoix, 1 Johns. Cas. 406, and cases there cited. Tufts was one of the original consignees of the lead, and had full legal authority to do all that he did; and it is not pretended that the defendants were ignorant of his character, or doubted his authority.
But I am inclined to think the defendants had a lien on the lead, for the freight, average and charges, which the plaintiff was bound to have paid or tendered, before he commenced his action. Captain Collins undoubtedly had such lien when he transferred the bill of lading to the defendants, and the lien passed with it. The lead was consigned to Captain Collins or order on its last shipment from Norfolk, probably for the purpose of enabling him to enforce his lien for the previous freight, &c. This bill of lading appears to have been assigned to the defendants, who paid or became responsible for the freight and charges. That a master of a vessel has a general lien of this description, which will pass by assignment, is not denied. It is recognized in all the cases. 2 Johns. Cas. 411. The subsequent fraudulent conduct of Captain Collins, in relation to these goods, cannot
But it is said that the defendants waived their lien by not putting themselves upon that ground, when the demand was made. There are a variety of cases in which it has been held that a defendant cannot defeat an action of this kind, by setting up at the trial a right to detain the goods on the ground of a special lien, when he assumed a totally distinct ground at the time of the demand made. Boardman v. Sill, 1 Campb. 410, note. Judah v. Kemp and others, 2 Johns. Cas. 411. 2 Bingham, 23. 9 Com. L. R. 302, S. C. But it will be found that wherever this doctrine has been applied, the defendant not merely omitted to assert his lien, but put his right distinctly upon some other ground. Such wras the case in Boardman v. Sill, and in Judah v. Kemp; but in White v. Garner, 2 Bing. 23, the defendant, when the property was demanded from him, replied, “that he might as well give up every transaction of his life,” as give up those goods. This was held to be no waiver of his lien it did not necessarily imply the asserting a right on his pait to retain them on another and distinct ground. In the case at bar, the defendants to whom the application ivas made, stated frankly, and for aught, that appears, truly, all the facts connected with their agency in relation to the property; and among other things that they had become responsible for the freight and average, and had advanced money to Collins, as I should infer, on that account. They take no distinct ground, but slate all the facts, and from the facts stated, it might as fairly be inferred that they relied' upon a special lien, as on any other ground of defence. This was no waiver of their lien.
It is a good defence to an action of trover, that the defendant had a right to detain the goods under a lien; unless the plaintiff shews that at the time of the demand, he offered to discharge the defendant’s claim, and made a formal tender of satisfaction. The defendant in such a case has a right to detain the goods until his lien is discharged. He is not bound to relinquish his security and avail himself of his claim, by way of offset or in mitigation of damages. The plaintiff’s right of action is not complete until the lien is satisfied. 2 Ld.
it is no defence in this action, under the circumstances disclosed in this case, that the defendants, in disposing of the plaintiff’s property, acted without fraud, and in ignorance of the plaintiff’s rights. It has been-held that trover lies against a servant who disposes of goods belonging.to another, to his master’s use, whether he acts with or without authority from his master in so doing. Perkins v. Smith, 1 Wils. 328. Stephens v. Elwall, 4 Maule & Sel. 259. The disposing or assuming to dispose of another man’s goods without his authority, is the gist of this action ; and it is no answer for the defendants that they acted under instructions from another, who had hi inself no authority. Lord Ellenborough, in Stephens v. Elwall, 4 Maule & Scl. 259; 6 East, 538. 1 Burr. 20, 2 Strange, 813. 2 Saund. 47, e. 2 Phil. Ev. 121 et seq. and notes referring to the American cases. I did not understand the counsel for the defendant to contend that Collins had any right to sell and dispose of these goods. He most certainly had not, and could confer no authority upon the defendants to do so. The precise relation in which the defendants stood to Collins does not appear; but whatever they did in relation to these goods, was done under his directions and for his benefit. It may be questionable whether they acted in - any other capacity than as his servants or agents in the particular transaction.
I see no objection to the plaintiff’s recovery, except the special lien of the defendants for freight and charges; but that is fatal to this action, and the plaintiff was therefore properly nonsuited.
Motion to set aside nonsuit denied.