38 Wis. 511 | Wis. | 1875
In order to dispose of this case it is unnecessary to consider and decide all the questions which were discussed by counsel on the argument, and we shall not attempt to do so. Our attention will be confined to a consideration of the exception taken to the refusal of the circuit court to give the following instruction asked on the part of the plaintiffs, namely: “If the jury find that the defendants obtained possession of the scales from the plaintiffs directly as the agents and tenants of the plaintiffs, and as a loan to the defendants, as the plaintiffs testify, then the defendants are estopped from setting up a title derived from any third party while they were so holding possession, and the plaintiffs should recover.”
The instruction was founded upon the testimony of the plaintiffs introduced on the trial, which tended to prove that the scales in controversy were loaned by them to the defendants to be used and taken care of; and that the possession of the scales, or, what was equivalent to the possession, the keys of the scales, were to be returned to the plaintiffs whenever requested. It appeared from the evidence that the plaintiffs purchased the scales of one Norton Emmons in January, 1871, and that the bailment by them to the defendants was in June or July following. In March, 1871, Emmons was adjudged a bankrupt; and in February, 1872, the defendants, while holding the scales under the contract of bailment, purchased them of the assignee in bankruptcy as part of the estate of the bankrupt. And the counsel for the plaintiffs insists that the de
The general rule of law upon this subject, as laid down in the books, is, that one who has received property from another as his bailee or agent, must restore or account for that property to him from whom he has received it. Story on Bailm., §§ 102 and 103; Story on Agency, §217; Biddle v. Bond, 6 Best & Smith, 225; Nicholson v. Knowles, 5 Mad., 47; While v. Bartlett, 9 Bingham, 378. “Generally speaking,” says Mr. Justice Story, “ restitution of the property deposited is to be made to the bailor; although there may be special cases in which that would not, be required or justified. As, for instance, if the goods have been deposited by a thief who has - been convicted, and the owner reclaims them, the latter alone is entitled to receive them.” Story on Bailm., supra. And the learned author shows that by the older authorities it was held that if the goods of A. were bailed by B- to C., C. must redeliver them to B., and was not allowed to alter that possession which had been committed to him in order to restore it to the right owner. But this rule has been relaxed by some of the modern authorities, as wall be seen in Biddle v. Bond, supra; Gosling v. Birnie, 7 Bing., 339; Thorne v. Tilbury, 3 Hurl. & Nor., 534; Cheesman v. Exall, 6 Exch., 341; Hardman v. Willcock, note (a) to White v. Bartlett, supra. But it is not necessary to dwell upon these cases, as we do not intend to come in conflict with them. Chancellor Walworth, in Marvin v. Ellwood, 11 Paige, 366-376, lays down the rule applicable to the case before us. He says, “A bailee or agent who has received property as such, is at all. times at liberty to show that his bailor or
By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.