Pattee v. Gilmore

18 N.H. 460 | Superior Court of New Hampshire | 1846

Gilchrist, J.

This is an action of trover, to recover seventeen thousand shingles. The defendants were partners from May, 184S, until the first of January, 1845.

Iu September, 1844, the plaintiff sent them twelve thousand shingles, to be sold by. them, and in February, 1845, sent five thousand more, which were left at the same place. The first question relates to the liability of Pratt to the plaintiff in an action of trover.

On the 2d of August, 1845, and after the dissolution of the firm of Gilmore & Pratt, the plaintiff’s attorney addressed a letter to Gilmore & Pratt, which was received by Gilmore, demanding the shingles. This party answered the letter by another, in which he denied “ that they ever had a shingle of the defendant, or any other transaction,” and signed the letter, “ Joseph A. Gilmore, for Gilmore & Pratt.” There was no evidence of any other demand, upon Pratt,, and there was no other evidence of a conversion.

The demand by letter would of itself be insufficient. It would impose no greater duty on the defendants thaa existed before. The fact that a party has in his possession goods deliverable on demand, implies that there is some one to whom the goods are to be delivered. Upon the reception of the letter, the defendant, Gilmore, was not bound to transmit the goods to the plaintiff, and if he had taken no notice of the letter, no liability would have been imposed on him. But he denied having any shingles, and that denial dispensed with the necessity of another demand, for after this it would have been useless to make a demand at any place. The demand made was, therefore, under the circumstances, enough to charge him with the conversion.

At the time when this demand was made no such relation existed between the two defendants as would have enabled Gilmore, by his acts or declarations, to have charged Pratt with a tort. This ease does' not raise the question whether a conversion by one partner, of goods consigned to the firm, is in law the tortious act of all the copartners, or whether they are all chargeable in tort, upon evidence that a demand has been made upon one of them, sufficient to have charged him with a conversion of property bailed to him for any purpose. Story on Part., sec. 166. The relation of copartners did not exist between the defendants at the earliest period at which there is any evidence of a conversion, and no relation between them succeeded that of the copartnership, that could give to the acts and declarations of Gilmore the effect supposed. If he had any agency for his former partner, there is no evidence whatever that it extended so far as that.

The doctrine of White v. Demary, 2 N. H. Rep. 546, seems to be applicable to this case, and to be conclusive as to the insufficiency of the evidence to charge Pratt with the tort. It was there held that where property is bailed to two, trover cannot be maintained against them upon proof of a demand upon one only, and his refusal.

Whether any other party besides Gilmore was chargeable with the shingles sent after the dissolution of the old firm, and the formation of the connection with Clapp, it is unnecessary to inquire; because there is evidence of a conversion of the property by Gilmore, and it is not necessary in tort to join with him any other, whether a partner .or not, who may have participated with him in the commission of it. Story on Part., see. -167.

The verdict was correctly rendered against Gilmore for the value of both parcels of shingles, and there was no evidence to charge Pratt with the conversion. The mere fact of his having left the State, without other circumstances than the case discloses, is not evidence to prove such a fact.

There must, therefore, be

Judgment on the verdict.