43 N.H. 536 | N.H. | 1862
The objection to the direct questions in the plaintiff’s deposition, was not that they were leading, because it was too late to take that objection on trial, nor was it that the last one calls for an opinion of the witness, because the case shows that the witness was competent to give an opinion. But the objection is that they were all irrelevant. But we think they were properly allowed to be read and answered. One of the charges or counts in the declaration, is for nursing the defendant, and these questions seem to have reference to that count. Now it would be material on that point that the plaintiff’s wife had the principal care of the defendant, and was her principal nurse. Her services in that case would be greater and more valuable than as though the defendant employed some other person in that capacity, and the plaintiff"s wife had but little care of her. The value of such services would also depend much upon the manner in which they were rendered, whether the care and treatment were kind and considerate, or harsh and repulsive, and the amount of such care and of the services rendered, might be materially affected by the fact as to whether the defendant was very dangerously ill and in a critical condition, or whether she was only comfortably sick, as is sometimes said, and in no danger. The opinion of the physician that the defendant was or was not thus in danger, would be competent evidence that such was the fact, and that fact was competent.
The objection by the plaintiff- to the cross interrogatory of the defendant, in regard to the witness having been bound over, &c., we think well taken. The plaintiff did not specify his objection to the question; and was not called upon to do so; the ruling must therefore be sustained if there was any sufficient ground upon which it could be based. The record of the binding over, or a copy of it, would have been the best evidence of the fact, if such fact existed. The answer to this question, if admitted, would not have been the best evidence, and was therefore incompetent. Whether the fact would be admissible, if the proper evidence of it had been offered, it is not necessary here to determine. Whether the decisions of Clement v. Brooks, 13 N. H. 92, and Hersom v. Henderson, 23 N. H. 498, are correct, or the views of the defendant as stated in his brief, we have here no occasion to decide.
Can the defendant be allowed her note in set-off in this action ? In Hill v. Davis, 3 N. H. 384, it is held that where one took the goods of another and converted them to his own use, without the license of the owner, the tort might be waived and assumpsit be supported for the price. So in Cummings v. Noyes, 10 Mass. 435, where it is held that it is competent for the owner of goods, from whom they have been tortiously taken, to waive the tort, and to treat the party liable to his action as a purchaser, an agent or a bailee, whose use or disposal of the goods is thereby sanctioned and confirmed, and then the value of the goods, or a fair compensation for the use of them is recoverable, and to be assessed in damages. Some of the English decisions seem to favor the same view.
But in Jones v. Hoar, 5 Pick. 285, this question arose and was very fully considered, and the authorities, English and American,
So in this State, the court has had occasion to review this subject in Mann v. Locke, 11 N. H. 246, where it is held that the whole extent of the doctrine of waiving a tort and bringing assumpsit is, where the individual liable in trespass or trover has sold the goods unlawfully taken or detained, and received the money for them, when the owner may elect to affirm such sale, and maintain an action of money had and received for the proceeds; and see eases cited on page 248. 1 Chit. Pl. 39 and 40. White v. Brooks, 43 N. H. 402. And we are not aware of any variation from that rule in this State since the decision in Mann v. Locke.
In Massachusetts we find this expression of Judge Thomas in Walker v. Davis, 1 Gray 509. “ Ordinarily, in the case of torts, it is in the election of the owner of the property wrongfully taken to bring his action for the tort, or waiving that, to bring assumpsit, and when he brings the latter, the defendant is estopped to say there was no promise, and that he took the property wrongfully or to set up his own fraud or wrong in defense of the suit.” But this is only a dictum, as the facts in that case do not call for any such holding. There the wrong-doer had sold the property for cash, before action brought (as appears from page 508), and the plaintiff clearly had his election. So in 2 Greenl. Ev., sec. 108, the same doctrine in substance is stated, and the cases favoring that view are cited as authority. But in 1 Hillard on Torts 47, ch. 1, sec. 38, we find this statement of Greenleaf, and the one just quoted from Judge Thomas, together with the decision by Jackson, J., in Cummings v. Noyes, 10 Mass., stated as containing doctrines in regard to this extended view of the remedy “ which have been closely criticised and seriously doubted.” But we find a more recent case in that State, which if any farther authority were needed to show what the law is there held to be, would seem to be conclusive. It is held in Glass Co. v. Walcott, 2 Allen 227, that “it is only when the wrong-doer has sold the property unlawfully taken or detained and received the money for it, that the owner can waive the tort and maintain an action of contract, and in that case, the action must be for money had and received to the use of such owner.”
We hold, therefore, that the ruling of the court at the trial term was correct, as the plaintiff' in this case had received nothing on the note — had neither sold or collected it; and we think that to hold differently would be to abolish and obliterate all just and proper distinctions between the different forms of action.
Judgment on the verdict.