Sanborn v. Colman

6 N.H. 14 | Superior Court of New Hampshire | 1832

By the court.

It is very clear, that, if the plaintiff in this case had, at the time he demanded the mare of the defendant, no right to the possession, this action cannot be maintained. And if the contract, between the plaintiff and Brown, was still, at that time, in force, the plaintiff certainly had not the right of possession.

But it is said, on behalf of the plaintiff, that the contract between the plaintiff and Brown was at an end ; that Brown had the mare to use, not to sell, and that the sale was a wrongful aGt, which authorized the plaintiff to consider the contract at an end, and to claim the possession of the mare wherever she could be found.

We are, on the whole, of opinion that this argument is unanswerable. The sale of the mare was, under the circumstances, a conversion of the properly, and most clearly put an end to the contract. 2 Dowland & Ryland, 1, Farrant v. Thompson; 3 Starkie’s Evidence, 1492—1500.

The plaintiff is, therefore, entitled to judgment.