Mathews v. Fisk

64 Me. 101 | Me. | 1874

Appleton, C. J.

This was an action of trover for a horse.

It appeared in evidence that the defendant on the twenty-third day of April 1872, sold the horse in controversy to the plaintiff, taking back from him a note on seven months and a mortgage conditioned to be void if the mortgagor should pay the defendant “a certain note of even date herewith, payable to said Fisk or order and signed by said Mathews, of one hundred dollars, said payments to be made as follows: twenty-five dollars to be paid in one month from date in cash, the balance to be paid in labor in driving logs this present season if said Mathews’ labor shall be sufficient, otherwise in cash according to the tenor of the note. Provided also, that it shall and may be lawful for said grantor to continue in possession of the afore-described property without denial or interruption by said grantee until the conditions of this sale are broken.”

The defendant in the following May took the horse from the possession of the plaintiff. The question arose whether the taking was before or after the expiration of the month in which the payment of the twenty-five dollars according to the terms of the mortgage was to be made. As to this the instruction of the court was that if this sum of twenty-five dollars remained unpaid at the expiration of the month, the defendant had a right to take possession of the mortgag’ed horse, otherwise not. This iustruction was sufficiently favorable to the defendant.

The defendant in the next fall transferred the note to one Erancis by way of exchange for another note. Erancis commenced a suit upon it and obtained judgment, which was satisfied and discharged April 15th, 1873.

The mortgage given by the defendant was never foreclosed. The defendant after taking possession of the horse sold the same to Joseph A. Clark, who in November 1872 sold the same to Joseph Hatch. In the -following December the defendant purchased the horse from Hatch and left him with Hatch to work for his board.

There was testimony tending to show that on April 23, 1873, two demands were made for the horse; the first in the morning about eight o’clock at the defendant’s stable, and the next at Lincoln in the street some hours later in the day. There was testimony tending to show that the .defendant immediately replied that the plaintiff could have him, that he was ready for him at Mr. Hatch’s stable, and testimony to the contrary. Hatch’s stable was within eight or ten rods of the place of demand. There was no proof that the horse was at the place of delivery at the time of the demand. The plaintiff made no objection to the place of delivery. He did not go for his horse but during the day brought his action.

The counsel for the defendant requested the court to instruct the jury “that the defendant was not bound to prove that the horse was in said Hatch’s stable on the twenty-third day of April 1873, at the time of the plaintiff’s demand. This instruction the presiding justice declined to give but instructed the jury if there was a demand and the horse was not there, that would amount to a conversion.

Tbe requested instruction was properly withheld. The defendant had no title to the horse whatever. His note had been paid. The plaintiff was entitled to the horse. No objection was made to the place or timo of demand. The defendant had control of the horse. If he would make a tender of the horse or deliver him on demand, it was for him to see that the horse was at the place of delivery. The responsibility was on him that the horse should be there. The requested instruction was properly withheld.

If the horse was not at the place where it was stated to be, (and the defendant testified that he did not know whether it was or not) then there was a demand by the owner upon one having possession and control of his property and a misrepresentation as to where that property was. There was no surrender of possession but a direction to go where the property was not and get it. This was evidence tending to show a conversion. It would have been more correct to have stated to the jury that it was evidence from which a conversion might be inferred.

But by the defendant’s own showing the mortgage note had been paid previously to the demand. After payment the horse was in the possession of a bailee of the defendant to be used at the will and pleasure of such bailee. The defendant, his note being paid, ceased to have any interest in or rightful control over the property of the plaintiff. That the horse was then at work for his board with Hatch by the authority of the defendant and under a contract with him was of itself a conversion of the plaintiff’s property, for which the defendant was liable. So a sale by the mortgagee before foreclosure would be a conversion for which the mortgagor could maintain an action. Spaulding v. Barnes, 4 Gray, 330.

An objection is taken to the form of the action. By It. S., c. 91, § 3, after payment of the mortgage debt “the property if not immediately restored may be replevied or damages for withholding it recovered in an action on the case.” The plaintiff therefore had his election to bring trover or replevin.

Upon the facts which are undisputed the defence fails. It does not therefore become necessary to determine whether or not all the rulings under which the verdict was rendered are strictly correct. Kimball v. Hildreth, 8 Allen, 167.

Exceptions overruled.

Cutting, Walton, Barrows, Danforth and Peters, JJ., concurred.