9 Daly 226 | New York Court of Common Pleas | 1880
It seems to me very evident that the judgment of the court of common pleas in the action of Drennen v. .Philips was no bar to the present action.
There was no privity between the plaintiff and Philips.
The action of replevin is merely a possessory action, and, as against Philips, Drennen might well have been entitled to the possession of the horse, when he would have no defense to the claim of possession of the plaintiff. Philips was in no manner the employe of the plaintiff, and derived no authority whatever to act for him. He was the servant of the people, and derived his authority to act from the warrant of the justice, who was acting in the name of the people.
The next objection raised by the appellant is that it was established in this case that the plaintiff allowed Goff to appear as the owner, and enabled him to impose upon the defendant, an innocent party. The answer to this objection is entirely simple, and it is this: that there is no evidence whatever that any person whatever was deceived by the possession of Goff of the horse, into the belief that he was the owner or had any authority to sell the same.
The charge in this respect was as follows:
“The question for your consideration is whether-this horse was stolen from the plaintiff. If you find as a question of fact that Goff procured the animal simply for the purpose of exhibiting it, with the understanding that he was not to sell it or part with it, but return it to the owner, and that, instead of carrying out the purpose for which the horse was allowed to be delivered to him, he, with criminal intent, possessed himself of the property and parted with it, it was a felony, and whoever bought or obtained that property bought it subject to the right of the plaintiff. But should you find from the evidence,—and there may be some for your consideration in that respect,—that authority was given by the plaintiff to Goff to sell the horse, as a matter of course the act of parting with it was not felony, and a party purchasing it in good faith would have title. But you have a right to consider whether the evidence in that respect is sufficient to convince you that the plaintiff gave Goff that authority. You must be satisfied of that fact from the evidence adduced.”
The question as to the circumstances under which Goff obtained possession of the horse was fully submitted to the jury, and the evidence fully justified their verdict.
The request of the defendant at' fol. 1S9 of the case is entirely too broad. It is as follows :
“ I ask the court to charge that where the owner of a chattel delivers it into the possession of one whose business it is to deal in those chattels, the jury can from that imply the authority to sell which will protect a dona fide purchaser.”
There is no such rule known to the law, in the first place; and in the second place, there is no evidence that any person
The exception at fol. 53 is clearly untenable, because the question was asked as an explanation of what the witness had said upon cross-examination, and the witness says that he told Goff what he meant by the words used.
The exception to the evidence of the contents of the card is not well taken.
It was the claim of the defendants that the plaintiff had been accustomed to let Goff have this horse for purposes of sale, and the evidence as to the contents of the card was material to rebut this claim.
The judgment should be affirmed with costs.
J. F. Daly and Vajst Hoesen, JJ., concurred.
Judgment affirmed, with costs.
