Gates v. Goreham, 5 Vt. 317

Gates v. Goreham

5 Vt. 317 | Vt. | 1833

The opinion of the Court was pronounced by

Baylies, J.

The contract between the parties, of which the above is a copy, is doubtful on the face of it. From the words in the first three lines, “ I do agree to pay thirty sheep,” one would suppose, that this was a promissory note for sheep, and the plaintiff could have no interest- in them, before they were paid. But from the words in the-6th and 7th lines, “ the said sheep is (are) to be returned in-one year from date,” one might suppose ihe defendant took the sheep of the plaintiff, who still remained the owner of the sheep, which the defendant was to return to the-plaintiff in one year. But both of these constructions cannot be right. If we reject the word “pay,” in the second line, and substitute the word “return,” there would be no great difficulty in understanding this contract, as it was, probably, understood by the referee, when he decided the first suit; that is, that the plaintiff was the owner of the sheep. Whether the referee should, or should not have found the value of the sheep, we do not decide. It is however clear, that the referee, when he found only ten cfints damages and costs, did not intend to find for the plaintiff the value °f the sheep; but found the ten cents *320damages and costs for some supposed injury, which he considered was warranted by the evidence before him.— “The record of the first suit does not show, that there was any evidence before the referee of a conversion of the sheep by the defendant, so that the plaintiff could maintain tro-ver for them. The non-deliyery of the sheep at the time agreed upon was not a tortious conversion on the part of the defendant. This principle of law is recognized by Lord Ellenborough, in the case of Severin vs. Keppell, 4 Esp. N. P. R. 156. — He says, “that what begins in contract, a non-performance of what the party so undertakes to do, or a bare non-delivery of what he undertakes to deliver, is not to be considered as of itself amounting to a tortious conversion.”

Now, if the non-delivery of the sheep, at the time agreed, was not a tortious conversion, then it was necessary for the plaintiff, before he brought his action, and subsequently to the day when the sheep were to Have been returned, to demand the sheep of the defendant, in order to maintain trover for them. It seems such demand was made by the plaintiff, and the defendant refused to return the sheep. — This demand and refusal is sufficient evidence of a conversion of the sheep by the defendant; which conversion is the cause of action for which the defendant is sued in trover.— This came of action cannot be the same as the one described in the record of the first suit. If the causes of action are not the same, will it be pretended that the recovery of ten cents damages and one dollar and fifty cents costs in the first suit, will bar a recovery in the second suit, being an action of trover and conversion for the value of the sheep ? In the case of Kitchen et al. vs. Campbell, 3 Wils. 304, the Court say, “You shall not bring the same cause of action twice to a final determination; nemo debet bis vescari, upon this we found our judgement: and what is meant by the same came of action is, where the same evidence will support both the actions, although the actions may happen to be grounded on different writs; this is the test to know whether a final determination in a former action is a bar or not to a subsequent action j and it runs through all the cases in the books, both in real und personal actions.”

*321In the case at bar, it cannot be said, that the evidence, Which Was sufficient to support the first action, was sufficient to support the second. It did not tend, at all, to prove a conversion of the sheep by the defendant.

In the case of Lacon vs. Barnard, Cro. Char. 35, it was-decided that a recovery of twopence damages, and six pounds costs, in an action of trespass, for taking and driving away a flock of sheep, is no bar to' trover for the valúe of said sheep, if the plaintiff reply that the recovery was only for the talcing and driving away, and not for the value of the sheep. “ The damages' of two' pence given for 89' sheep-being so sttiall, is in itself an implication (and the Court shall so' intend if) that it was given only for the taking and driving of them, and that the plaintiff had them again, and! not in lieu of the value of them ; for if it should be given for the value of them, then the plaintiff should thereby lose the property in fhem, and have nothing for his sheep but twopence, and the defendant should have the sheep: but the law will rather intend (and so it may be averred) that those damages Were given only for the taking and driving, and that the plaintiff had them again, and afterwards lost-them, and that the defendant found and converted them,&c.”

Home of this reasoning will apply to the case at bar —¡ The law will intend almost any thing, before it will intend,that the ten cents damages were allowed by the referee in' the first suit for the' value of the plaintiff’s thirty sheep.

The plaintiff offered to prove by parol, what construction the referee gave to the written contract of the parties on the trial of the first suit before him; and also to show for" what he found the ten cents damages. This evidence was1 rightly excluded- by the County Court,- whose duty it was to construe the written contract themselves without reference to the construction which was given it by the referee. And Without parol evidence, the law would presume that the ten cents damages were not- found by the referee for the value' of the sheep.

As we are not satisfied that the causes of action are the same, or that the same evidence would support both ac*322tions, the judgement of the County Court is reversed, and a new trial is granted.

Merrill & Ormsbee, for plaintiff. Royce & Hodges, for defendant;