25 Minn. 189 | Minn. | 1878
It is conceded that the plaintiffs and one Converse, having, on May 21, 1875, purchased and acquired-a
The present action concerns that portion of this lumber which was left at the time of the suspension of the work, and which had not been actually used in the construction of the-house, or put in place in the dam and foundation for the mill structure. The claim of plaintiffs includes not only the unused portions of the lumber, but the entire framework of the mill not already erected or in place, though partially or wholly fitted therefor. The claim is rested upon the proposition that such portion so left never became partnership property, but belonged to the plaintiffs alone. In the submission of the case to the jury, the court stated, without objection from either side, that “it was not controverted that Person, Smith and Converse were engaged in the joint undertaking of erecting a mill, and that they were so engaged as partners.” Its charge, however, contains a refusal and instruction in the following language, which was duly excepted to by the defendant, and which is here assigned as error, viz.: “I am requested, gentlemen of the jury, by the defendant, to instruct you that the property having been purchased and delivered; upon the ground, to be used in the prosecution of a common
In view of a new trial, it is well, perhaps, to consider briefly the instructions which were given in relation to the liability of the defendant, in case the property in controversy was found to belong originally to plaintiffs and Converse, not as partners, but as tenants in common, and that the latter, holding the entire and actual possession, delivered it to the defendant under a bill of sale, assuming to transfer the title to the whole property as his own, instead of his undivided interest therein. Upon this state of facts, the sale from Converse to the defendant only operated to pass the title to the interest which he owned, and not the shares belonging to the plaintiffs. Mersereau v. Norton, 15 John. 180. By the transaction the defendant acquired title to the undivided interest belonging to Converse, together with exclusive actual possession of the entire property thus owned in common. His position, then, was that of a cotenant with plaintiffs, owning an undivided interest, and holding actual possession of the whole common property. As such tenant, he had no right to dispose of the interests of his cotenants, by a sale and delivery of the entire property as his owh, for that would be an act in such total violation of the proprietary rights of his cotenants as would sever the cotenancy, and be deemed in law, equivalent in its effects to a loss or destruction of the property itself. Wilson v. Reed, 3 John. 177; White v. Osborn, 21 Wend. 75; Weld v. Oliver, 21 Pick. 559.
There was some evidence tending to show a sale in -this •case, and enough, perhaps, to justify the court in declining to withhold the question of a conversion from the jury. But the ruling contained in the instructions which were given, to
Upon the pleadings, the value of the property alleged to have been converted stands admitted, and hence it is unnecessary to inquire into the correctness of the rulings upon the admissibility of evidence upon that question. Neither is it deemed important to consider any of the other points made •on the argument. The order appealed, from is reversed, and a new trial granted.