13 N.H. 494 | Superior Court of New Hampshire | 1843
The plaintiff had a sufficient property in the lumber to enable him to maintain trover, if the defendants are liable. He was part owner of the lumber, and although others were interested in it, yet it appears that he hired the mills at which it was manufactured, had possession of them and of the lumber, and had the complete control of it. It is evident that he might have sold it, being accountable to those interested, for the proceeds, and it seems that he had shipped it for that purpose. He had, then, a general property in part, and a special property in the residue, and the latter alone is sufficient for the purpose of this action. 2 N. H. Rep. 320, Jones vs. Sinclair; 4 Bing. 489, Knight vs. Legh. The sale by Kenniston terminated the bailment, and the plaintiff had the right of possession. 6 N. H. Rep. 14, Sanborn vs. Colman; 8 N. H. Rep. 325, Sargent vs. Gile.
The purchase by the defendants, taking possession as they appear to have done, and holding it as their own property, was a conversion. They received the possession from one who had no authority to deliver it to them, under a sale which purported to vest the property in tjiem ; and they, by the purchase, undertook to control it as their own property. This was an assumption of power over it, inconsistent with the rights of the plaintiff. Purchasing the property from one who had no right to sell, and holding it to their own use, is a direct act of conversion, without any demand and refusal. Their possession was unlawful in its inception, by reason of the want of authority in Kenniston to make the transfer. It is only where a party obtains the possession lawfully, that it is necessary to show a demand and refusal. 6 N. H. Rep. 14; 2 Fairf. R. 28, Galvin vs. Bacon; 2 Camp. 335, Wilkinson vs. King; 7 Johns. R.
The remaining question is, whether the suit and judgment against Kenniston, without satisfaction, constitute a bar to this action.
The action against him was for a breach of his contract to transport certain lumber and deliver it at Weymouth, alleging that he had not delivered it. It is not found, in terms, that the plaintiff recovered judgment for the value of the lumber in that action, but it may perhaps be inferred, prima fade, from the fact that the plaintiff in that writ alleged the value of the lumber to be $501.40, and obtained a judgment for that sum as damages.
The present action is for a wrong done by the defendants to the plaintiff, by a conversion of a part of the same lumber.
The two suits are, therefore, not for the same cause of action. Nor are they in any way inconsistent with each other. If the plaintiff had first brought this action against the defendants, and obtained judgment and satisfaction, he would still have had a right to maintain the action against Kennislon. 4 N. H. Rep. 338, Barron vs. Davis. If he had first obtained by this, and other actions against other purchasers, the whole value of the lumber sold by Kenniston, he might still have been entitled to damages against the latter for the non-performance of his contract. Had Kenniston performed his duty, and delivered the lumber at Weymouth, the plaintiff might perhaps have derived a still greater sum from the sale of it. At any rate he was entitled to the performance of the contract, and Kenniston liable for the breach. But having first claimed the value of the lumber of Kenniston, and included it in his judgment against him, the question is whether that bars him from resorting to others against whom, but for that judgment, he had good cause of action. And notwithstanding the cases cited by the counsel for the defendants from .some of the .earlier books, and even some mod
This is not an action for the recovery of damages for the same matter for which the plaintiff has already a judgment against the same defendant. Nor is it a case of an election de meliorihis damnis, for the damages recovered are not for the same wrong. The cause of action is, as we have seen, different. If, however, it were so, it is by no means clear that a judgment and execution against one, without satisfaction should constitute a bar. I Johns. R. 292, Bishop vs. Livingston, and auth. cited. The injured party has a right to pursue all who have done the wrong, until he obtains a satisfaction for it, unless he does something that is equivalent to a release of one. But an attempt to obtain satisfaction of one wrong doer, without success, neither indicates an intention to release another wrong doer, nor furnishes a reason why he should be exempted from his responsibility.
Nor can the judgment against Kenniston be regarded as an affirmance of his acts, as it might have been had the action been assumpsit to recover the money he received upon the sale. So far from a ratification of his acts, the action against him treats them all as tortious.
Satisfaction of the judgment against him would show that the plaintiff had no further claim for damages ; but, without payment, it is merely the case of an unsuccessful attempt to obtain satisfaction of one person, for a breach of the duty devolved upon him by his contract; and, failing in that, a call upon another to respond in damages for a tortious interference with a part of the property which formed the subject matter of the contract.
In a contract for the sale of goods, it is the payment of the price which completes the purchase, unless by special
We think this action is clearly sustained upon principle, and there is quite enough of authority to warrant us in disregarding the cases opposed to it. 2 Kent’s Com. 388, and auth. cited ; 8 Cowen’s R. 43, Osterhout vs. Roberts ; 1 Pick. R. 70, Campbell vs. Phelps, Opinion of Wilde, J.; 3 East 258, Drake vs. Mitchell, Opinion of Lord Ellenborough, C. J. Judgment on the verdict.
