McNair v. Wilcox, 121 Pa. 437

121 Pa. 437 | Pa. | 1888

Opinion,

Mr. Justice Sterrett :

In this action of trover and conversion, a special verdict was rendered in favor of plaintiff for $1,408, the amount of his interest in the property, subject to the opinion of the court on the question of law raised by the facts recited in the special verdict. That question is, whether, under the circumstances, trover and conversion can be maintained by plaintiff. The learned president of the Common Pleas held it could not, for the reason that while plaintiff was then interested in the property wrongfully obtained by defendant, he had neither actual possession thereof, nor the right of immediate possession, and he accordingly directed judgment for defendant non obstante veredicto. The only error assigned is the entry of that judgment instead of a general judgment for plaintiff on the verdict.

As the case was pi'esented to us by the learned counsel, it has been unnecessarily incumbered by the consideration of irrelevant matters not necessarily involved in the special verdict. The only question considered by the court below, or necessary to be noticed here, is the one above stated.

The conclusion reached by the learned judge was, that the executions and levies on the property in question at the time it was wrongfully taken by defendan t had the effect of depriving plaintiff of the legal possession as well as the right of immediate actual possession, and vesting the same in the sheriff. Conceding the correctness of that position, during the time the levies were in force, it will be observed that a different condition of affairs supervened long before this suit was brought. It is found as a fact, by the special verdict, that defendant “was notified by the sheriff that he must either return the property to him at Corry or satisfy the executions, which latter he did by becoming the purchaser of the judgments. The defendant then kept the property and plaintiff afterwards brought this suit.” It thus appears that the constructive possession of the sheriff as well as his right to actual possession of the property ceased as soon as defendant acquired control of the judgments, and the executions were returned. The property was thus released from the grasp of the executions, and, so far as they were concerned, plaintiff’s right to immediate possession was revived. Thereafter he was in a position to maintain this action against defendant who had wrongfully obtained custody of the property; and that was the status of the parties when this suit was brought in July, 1877.

Nor was plaintiff’s right to maintain the action affected by the fact that the property was transferred to defendant by plaintiff’s partner. Plaintiff’s interest in the property was not divested by the unauthorized assignment of his partner, made without his knowledge and in fraud of his rights. Speaking of the power of one partner to dispose of firm property, Mr. Justice Strong in Sloan v. Moore, 37 Pa. 217, 223, says: “S.ill less can authority be admitted in one partner to sell the entire property of the firm when the object of the firm was not trade, buying and selling, but a business to which the continued ownership of the property was indispensable. An assignment is for the purpose of paying the debts, but a sale, principally for division, as was this case, has not even that apology. Such a power in one of two copartners is asserted by no adjudicated case. It is directly in conflict with the purposes of the partnership. Instead of a presumption of agency to make such a sale, the presumptions are all the other way.” The sale to defendant in this case was not for the purpose of paying firm liabilities, nor for any other legitimate purpose; and, defendant having refused on demand of plaintiff to surrender possession of the property he had wrongfully obtained, the plaintiff had a right to maintain this action.

It is well settled that where oné joint owner of personal property sells or converts it to his own use the other may sue in trover for its value: Agnew v. Johnson, 17 Pa. 373, 378. As stated in tliat case, the reason why one partner cannot, as a general rule, maintain trover against the other, is that both are equally entitled to possession, and the possession of the one is the possession of both; but, if one deliver the property wrongfully to a stranger, for purposes inconsistent with the uses for which it was designed, and such stranger denies the title of the other and claims the exclusive possession and ownership, the reason of the rule ceases and trover may be maintained. We are of opinion that upon the facts established by the special verdict, plaintiff was entitled to judgment thereon for the amount found by the jury, and the court therefore erred in entering judgment non obstante veredicto.

Judgment reversed and judgment is now entered in favor of plaintiff on the verdict, for $1,408, the amount found by the jury, with interest from the date of the verdict, and costs.