4 Wend. 525 | N.Y. Sup. Ct. | 1830
By the Court,
What particular points were discussed in the court helow, the bill of exceptions does not disclose. I presume, however, that the ground on which the court decided was that the tender should have been made to the plaintiff at his yard, where the hogs were taken by the defendant: and that turning the plaintiff’s share of them into the street was not a delivery to the plaintiff. The contract, as stated, is merely that the defendant should fatten the plaintiff’s hogs on shares. What share each was to have is not stated. It is fair to presume that each was to have half, and the defendant states in his plea that he offered the plaintiff one half. It does not appear by the bill of exceptions that it was urged by the plaintiff in the court below that the hogs were not fattened, that the notice was insufficient, or that the division was irregular. But the point presented seems to have been, whether turning the hogs into the street was a sufficient tender to the plaintiff. If any other point was intended to be raised here, it should appear to be presented by the bill of exceptions.
The contract in this case, growing out of the taking of the hogs to fatten on shares, has been discussed by counsel as as a promise to deliver to the plaintiff one half the hogs when fattened. In ascertaining the rights and duties of parties to a contract for the delivery of specific articles, much depends on the terms used. If this is • a contract to deliver the hogs, the time and place must be ascertained from the nature of the contract. First, as to time : The time cannot be at any particular day, because that depends upon a contingency—the fattening of the hogs. It cannot be an obligation to be performed upon demand; for the delivery is to be made when the hogs shall be fattened; a fact which must be within the knowledge of the defendant in the court below, but not necessarily of the plaintiff. Secondly, as to place:
Another question arises, and was probably most considered by the court below, to wit: Suppose the notice by the defendant and subsequent tender, without objection to time or place, sufficient to discharge the liability of the defendant on his contract, was he justified in turning the hogs into the street, and thereby causing a total loss to the plaintiff? The doctrine of this court is, that the effect of a tender and refusal correctly made of a specific article is analogous to the
In discussing the last question, I have taken for granted that the tender was sufficient; but I have previously stated
There is another view of this case which strikes me as more correct. The plaintiff delivered to the defendant 27 hogs to be fattened on shares. The plaintiff was, before the, delivery, sole owner. What were the rights of the parties after delivery to the defendant ? It seems to me they Were tenants in common in each and every hog. If the hogs were fattened, the parties certainly were tenants in common before the division was made. It was not competent for one tenant in common of two chattels, without the consent of the other tenant in common, to appropriate one chattel to himself and the other to his co-tenant. One may dispose of his share of the property held in common, and the purchaser becomes a co-tenant with the other tenant in common. (15 Johns. R. 180.) The turning the hogs out in the street, without any further account of them, is at least prima facie evidence of a destruction; and the defendant below was entitled to recover in trover. One tenant in common may maintain trover against his co-tenant, where there is a destruction of the chattel. (3 Johns. R. 178. 2 id. 470.) In every point of view, therefore, the judgment below was right, and must be affirmed.