4 Denio 227 | N.Y. Sup. Ct. | 1847
The contract between these parties was strictly a pledge of the boots and shoes. At common law, a pledge is defined to be a bailment of personal property, as a security for some debt or engagement. (2 Kent’s Com. 577, 5th ed.; Story on Bailment, § 286.) The plaintiffs’ debt, thus secured, became payable on the 8th day of November, 1837. On the 15th of that month, the plaintiffs caused the pledge to be sold at a public sale by an auctioneer in Boston, pursuant to a public notice published in certain newspapers in that city from the 2d to the 15th of November inclusive; but no notice of sale, or to redeem, was at any time given to the defendants. The net proceeds of the sale was $166,97, which the plaintiffs applied on their debt without the assent of the defendants.
The first question made on the argument is, whether the sale thus made was authorized, and bound the defendants. On the part of the plaintiffs it was insisted, that the pledge
The evidence in this case shows that the plaintiffs, in November, 1837, long prior to the commencement of this suit, tortiously sold the pledge, and thereby put it entirely beyond their power to return it, upon payment of the debt. Where a pledge is made by a debtor to his creditor to secure his debt, for a certain term, the law requires that the latter shall safely keep it without using it, so as to cause any detriment thereto; and if any detriment happens to it within the term appointed, it may be set off against the debt, according to the damage sustained. And if the pledge is made without mention of any particular term, the creditor may demand his debt at any time. When the debt is paid, the creditor is bound to restore the pledge in the condition he received it, or make satisfaction for any injury that it has received ; for it is a rule, that a creditor is to restore the pledge or make satisfaction for it; if not, he is to lose his debt. (1 Reeve's Hist. Eng. Law, 161, 162.) If the pledgor, in consequence of any default of the pledgee, or of his conversion of the pledge, has by any action recovered the value of the
The plaintiffs were wrongdoers in selling the pledge at the time they did, without notice to redeem or of the sale being given to the defendants; and it is shown that the value of the pledge at the time equalled, if it did not exceed the debt which it was made to secure.
The counsel for the defendants, in effect, offered to recoup their damages arising from the plaintiffs’ breach of the contract of pledge, but was not permitted to do so. It is urged by the plaintiffs’ counsel, that the defence was not admissible under the pleadings; but I am satisfied that it was unnecessary to plead specially, or to give notice of the .matters relied on. The evidence establishes that the plaintiffs had no cause of action, and the defence is fairly covered by the plea of non-assumpsit. (Batterman v. Pierce, 3 Hill, 171; Barber v. Rose, 5 id. 76; Ives v. Van Epps, 22 Wend. 155.)
The defendants clearly had an election of remedies against the plaintiffs for the conversion of the pledge. They could maintain trover or assumpsit, and in the latter action could recover the value under the common counts. (Hill v. Perrott, 3 Taunt. 274; Butts v. Collins, 13 Wend. 139 to 154.) If assumpsit was maintainable by them, they may, in an action by the plaintiffs, set off the value of the boots and shoes as for such property sold. There is no valid objection on the ground that the damages are unliquidated or uncertain. The case of Butts v. Collins is decisive on that point. There must be a new trial.
New trial granted.