7 Cow. 752 | N.Y. Sup. Ct. | 1827
There was no well founded objection to the form of the action. The plaintiff did not consent to the taking, but forbade it. It is true, there is the appearance of a negotiation, commenced respecting the property, in which it was agreed to call on Law; but this was not carried into effect, by reason of the refusal of the defendant below. Thus the parties were left in the same situation as before the proposition was made. At most, it was only the incipient step towards an accommodation; and, of itself, was neither an acknowledgment of bright in the defendant below, nor permission to take. The decision of the court below on this point was not erroneous.
The plaintiff below was entitled to recover unless the defendant below made out a good title to the property taken. This will, in some measure, depend on the contract of letting. It seems to me, the first question was, whether the identical sheep, if they survived, were to be returned, ox the same number of sheep, and of as good quality. In the first case the title would still have continued in the defendant below, with the right to assert it when, the period of letting expired. There was no proof that any of the sheep died. If the terms of the letting were as in the second case, or in the alternative, the right of the defendant below rested in contract; for he was not authorized to claim the identical sheep. He had given Dayton the right of returning any other sheep of the same quality; and this right consequently allowed Daniel Dayton to dispose of the sheep let, and substitute others of the same quality. The defendant below was bound to make out property in the subject. A claim to be compensated by the delivery of 23 sheep, or damages, if that was omitted, will not suffice to j ustify the taking.
The residue of the charge is, substantially, that the plaintiff below was entitled to recover, if the sheep were not the same lot. This part is also correct, unless there is another question connected with it, and arising from the evidence, that ought to have been submitted to the jury, the finding of which favorably to the defendant below, would leave the question whether the sheep taken were the same or not, an immaterial inquiry.
I admit that, in considering this point, it is unimportant whether the contract was to return the identical sheep, or others of the same quality; for, in either case, the defendant below had no" right to them. It was, however, competent for Daniel Dayton to return, and for the defendant below to accept any sheep in satisfaction of the contract; Is there any evidence bearing on this point sufficient to go to the jury? If there is, their attention should have been called to it; for it cannot be doubted, that if, in fact, Daniel Dayton returned the sheep in question to the defendant below, or delivered them on the farm to Gideon Dayton as the property of the defendant below, and he recognized that act by accepting the delivery, the right of property in the defendant below became perfect. I think it highly probable that such was the course of the transaction; but I am not at liberty to indulge in *conjectures, ís there legal evidence of this ? All tlmi appears
The declarations of Gideon Dayton, before he sold the sheep, that they belonged to the defendant below, that they were left by him to be kept, and had formerly been let to Daniel Dayton, if legal evidence, would well warrant the inference that the defendant and Daniel Dayton had made a settlement on some terms; and that the same sheep, or others in their place, had been returned. But these declarations cannot affect the rights of the plaintiff below, although a purchaser subsequently;
The fact that the defendant below, about the time that Daniel Dayton went away, started to go to his house to settle with him, and to get the sheep kept, is a circumstance which, connected with others, might be material; but, alone, proves nothing in relation to an actual settlement, and a return of the sheep. So also the fact that Giedon Dayton called and wanted the defendant below to come and settle with him for the keeping of the sheep, does not touch the question whether Daniel Dayton had delivered them. The claim of Gideon Dayton was solely for the keeping, which might have existed aglinst the defendant, although he. had not been the owner.
I am, therefore, inclined to think there was no evidence to support the proposition, that the sheep in question had ever been set apart by Daniel Dayton for the defendant below, or any act done by the former to make a delivery. If I am correct, in this view, it follows that the charge was warranted ; that if these were not the identical sheep let to Daniel Dayton, the plaintiff ought to recover; for in ""that case, if it be admitted that he purchased of a person having no title, his possession could not rightfully be divested by a
This position goes upon a distinction in the law of bailments, which has been somewhat obscured by a recent decision. If the identical sheep were to have been returned,'it was the simple case of the locaiio rio, a kind of lease of personal property, at a rent, for a term, after which the property in the thing reverts, as it were, to the lessor.! In such case the identical property belongs to the bailor, who may maintain trover for it, or detinue for the specific thing, as a reversioner may sue for the specific land after the term has expired. In such a case, if the bailee exercise ordinary care of the thing, he is not responsible though it perish. But it is otherwise in the second case put by judge Woodworth, where the bailee is to return another article of the same kind, or has an option to return the same or another. The property then passes; it is the case of sale or exchange; the original owner acquires a property in the price; while all his interest is gone in the specific thing; and no action will lie except assumpsit for the price, until the thing to be delivered in compensation, has been so delivered, or tendered. It is a case of payment; not a reversion. It is like Barns v. Graham, (4 Cowen, 452,) where Savage, Oh. J., has very aptly defined the rights and duties of the parties. I said this distinction was obscured by a late decision. I allude to Seymour v. Brown and others, (19 John. 44.) The defendants
Phillipps, in his Treatise on Evidence, says, the “ admission of an owner is sometimes evidence against one who claims through him." This seems to be an exception to the general rule, which is, I apprehend, against receiving the admission of a vendor to affect the rights of a vendee, though such admissions be made previous to the sale. In trespass de lonis asportatis, by Ivat against Finch and another, the defendants claimed that they had rightfully taken the goods in question upon a heriot custom, as the goods of Alic.e Watson, deceased, the tenant; and the only question was, whether she owned them at the time of her death. To prove that she did not, it was held that the plaintiff might show her declaration, made some time before her death, that she had sold them to him. Mansfield, O. J., said the admission was against her interest; and, had the action been by the plaintiff against her, the admission would clearly be evidence, and ought, therefore, to be received against the defendants whose right depended upon her title. (1 Taunt. 141.) The principle stated here is broad enough to let in such an admission, generally, against all claiming under an owner of personal property, if the admission be made previous to the time when the title of the claimant accrued. But the case itself is of an admission by a deceased owner. Her testimony could not be obtained; and her admission was, therefore, to be received as the next best evidence. That such was the principle of that case, is the more probable from a previous nisi prius decision, (Duckham v. Wallis,