Rich v. Ryder

105 Mass. 306 | Mass. | 1870

Chapman, C. J.

1. The motion to dismiss on account of the insufficiency of the replevin bond, having been filed after verdict, was made too late. Gen. Sts. e. 129, § 79.

2. The usage at the port of Provincetown related to the method of disposing of the supplies which were left at the termination of the voyage, for the purpose of settling up the voyage, and is valid. We can see nothing unreasonable in it, and it has all the characteristics of a legal usage, being a mere method of transacting business. Dickinson v. Gay, 7 Allen, 29.

3. The principal question in the case is, whether the plaintiff can maintain replevin for goods of which he and the defendant, with the other part owners, are tenants in common. Generally one tenant in common cannot maintain replevin against a cotenant, because tenants in common have each and equally the right of possession. Barnes v. Bartlett, 15 Pick. 71, 75. But the plaintiff contends that by agreement of the part owners he had a right of possession. During the voyage, it was necessary that the master should have the exclusive possession of the ship’s stores, not only for the success of the voyage, but for the preservation of the lives and health of all on board. The other part owners, though tenants in common with him, had no right of possession. His right was implied in the contract by which he became master. But at the termination of the voyage it was equally necessary, and equally implied by the terms of the plaintiff's contract with the other part owners, including the master, that as general agent of the vessel he should have the exclusive possession, in order that he might perform the duty which he had undertaken to perform, and was legally liable to them to perform; namely, that he might cause an appraisal of the stores to be made, and either distribute or sell them, and settle up the voyage according to the usage which constituted a part of the contract between him and them.

His right of possession must be irrevocable in order to be valid and effectual. His authority may not be strictly a power coupled with an interest, as defined by Chief Justice Marshall in Hunt v. Rousmanier, 8 Wheat. 174, and yet may be irrevocable. In that case, a power of attorney had been given to sell a chattel which the agent held as security for a note given by his principal, and it was held to be irrevocable during the life of the principal, though not a power coupled with an interest. See also Story on Agency, § 477, and note. But in Smart v. Sanders, 5 C. B. 895, Wilde, C. J., says, where an agreement is entered into on sufficient considerations, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such authority is irrevocable, and it is what is commonly meant by an authority coupled with an interest.

In the present case, the plaintiff’s agreement with the other part owners to act as general agent was upon a good consideration. It secured a substantial benefit to himself and to each of his cotenants for whom he undertook to act, and he had a right to earn and receive his commissions. His possession was not that of a mere servant whose possession was the possession of the other part owners ; nor that of a mere cotenant; but it was that of a contractor, who was under obligation to them to perform his contract. He had not only a right of exclusive possession against each part owner, bnt an interest that constituted a special prop* erty, at least equal to that of an auctioneer; and an auctioneer has an interest sufficient to maintain replevin. Tyler v. Freeman, 3 Cush. 261.

Under the Gen. Sts. c. 143, § 10, replevin lies where goods are taken or detained from the owner or person entitled to the possession. This language is broad enough to include the plaintiff’s right of possession. It was always true that a special property was sufficient to maintain replevin. Co. Lit. 145 b. Gilbert on Replevin, 157. And it has been held that one who has a temporary property in a chattel, and delivers it to the general owner for a special purpose, may, after that purpose is satisfied, and during his temporary right, maintain trover for it against the general owner. Roberts v. Wyatt, 2 Taunt. 268. The interest sufficient to maintain trover is sufficient to maintain replevin. 3 Steph. N. P. 2485.

As the plaintiff has a legal right to settle up the voyage in the method agreed upon, and as possession of the property is necessary for that purpose, he may have a legal remedy to obtain that possession; and replevin is the appropriate remedy.

Exceptions overruled.