Otis v. Jones

21 Wend. 394 | N.Y. Sup. Ct. | 1839

By the Court,

Bronson, J.

Assuming that the first and second attachments were both regular, still the sale of the horses in June, on an execution in favor of Jones, when there was no judgment to support the execution, was clearly wrongful, and a conversion of the property. Reynolds v. Shuler, 5 Cowen, 323. And besides, Jones was himself the purchaser at the sale, and held the horses about three months under this void title. It is impossible to deny that there was a conversion. Indeed it was so ruled at the circuit.

But the judge held that the second sale, which took place in September, and on the execution in favor of Farnum, was legal; that the effect of the sale was in mitigation of damages, and that the plaintiff was only entitled to a verdict for the nominal sum of six cents.

Assuming what we do not intend to decide, that the justice had in this case the power to amend his docket and issue a new execution, and that the second sale was consequently legal, still I think the plaintiff has a right to complain, of the rule of damages. He had been wrongfully deprived of his property in June-—his right of action was then complete, and had the suit been brought at any time within the three months which elapsed before the second sale, it is admitted that he would have been entitled to recove • the full value of the property. How has he lost that right 7 The statute of limitations has not run, nor has the plaintiff done any act Whatever to bar or prejudice his claim. How then has he lost every thing but the. mere form of a remedy 7 The argument is, that by the second sale, on legal process, the property has in effect been applied to the plaintiff’s use, and therefore he ought only to recover nominal damages. The .answer is, that a’ wrong-doer cannot discharge himself by •any act of his own, without the assent of the injured party.

But suppose there was no tort in the case, and the question arose in an action of assumpsit. Although by means of the second sale the sum of $36, for which the property Was struck off, may have been applied to the plaintiff’s use, by way of satisfying so much of his debt, yet as that benefit was conferred without request, it could create no legal obligation on the part -of the plaintiff to refund, or in any other way account for the money. Bartholomew v. Jackson, 20 Johns. R. 28. If the defendanteould not in an action re- ■ cover the value of a benefit thus conferred on the plaintiff, he cannot do the same thing in another form, as by setting it off or using it by way of satisfaction in an action brought against him by the plaintiff. If this Could not be done in assumpsit, it surely cannot be allowed in an action of trover.

By procuring a sale on legal process, the defendant cannot be better off than he would be if he had offered to restore the property to the plaintiff. And yet no tender will, at the -common law, either bar an action for a tort, or take away the right to full compensation in damages. - The case of Hayward v. Seaward, 1 Moore & Scott, 459, does not proceed on the ground that .a tort can be .cured by -a tender without acceptance, but on the ground that there had been no conversion .of the property. In .the .case of Hanmer v. Wilsey, 17 Wend. 91, we had occasion to consider the -effect, both of an offer to restore property which had been wrongfully taken, and of a subsequent sale of the property •on legal process against the owner. We came to the conclusion that neither the tender nor the subsequent sale could in any way affect the remedy of the party whose property had been tortiously taken. It is true, that the owner in that case had commenced an action for the injury before either the tender or the sale was made. But that cannot alter the principle. We think the case of Hanmer v, Wilsey was rightly determined, and that it is decisive of the point under consideration.

Had there been a sale before suit brought, on legal process against the plaintiff in favor of some person other than the wrong-doer, that would have presented a question which we are not now called upon to decide. Irish v. Cloyes, 8 Vermont R 30. In this case although Farnum, was the nominal plaintiff in the second execution, the defendant Jones, was the real party. He owned the debt, and procured the -rendition of the judgment on which the execution issued.

Mexv trial granted.