38 Pa. 517 | Pa. | 1861
The opinion of the court was delivered,
— This was an action of trespass for taking and carrying away a lot of lumber. That the ownership of the lumber had been in the plaintiffs, or at least in one of them, was not seriously controverted, but the defence was that it had been
On the trial, the defendants gave in evidence a written agreement between Cottrell and Daniel C. Scudder, one of the plaintiffs, by which the latter agreed to furnish the lumber for a bridge, to be erected by the former. The agreement was not signed by Isaiah Scudder, the other plaintiff. There was also other evidence that Isaiah Scudder had not joined in the contract to furnish lumber for the bridge. The defendants then asked the court to instruct the jury, that if they believed that D. C. Scudder was alone a party to the contract, and Isaiah Scudder was not a party to it, the plaintiffs could not recover. To this point the court answered, “Affirmed, qualified.” Precisely what was intended by this does not appear from the charge, as sent up with the record, but it is insisted that the point should have been affirmed without qualification. We are of opinion, however, that it was answered more favourably for the plaintiffs in error than they had a right to require. The question was not whether both the plaintiffs had made a contract to furnish the lumber to Cottrell, but whether they both owned it, and had the possession or a right to the immediate possession, when the alleged trespass was committed. An executory agreement to sell the lumber made by one of them, did not of course disprove their joint ownership, and was not therefore conclusive against the right to recover.
The defendants also asked the court to charge the jury that an action of trespass cannot be maintained against a purchaser at sheriff’s sale, and that therefore their verdict must be for the defendants. They now assign as error that this point was denied as applicable to the present case, and we are referred to Ward v. Taylor, 1 Barr 238, as sustaining the assignment. That a mere purchaser at a sheriff’s sale who does nothing more than purchase, is not responsible in trespass for a wrongful act of the sheriff in levying on the goods and selling them, is undeniable. His purchase does not of itself make him a participant in the wrongful seizure. He is not made a trespasser by relation. But the question whether a purchaser at sheriff’s sale of personal property tortiously levied upon under an execution against another than the owner, is responsible to the owner in trespass
In the present case the wrong complained of was not the illegal seizure, by the sheriff, of the lumber as Cottrell’s. It was for an alleged subsequent act of the defendants in taking and removing it, an act done some time after the sheriff’s sale. When the sheriff sold, no actual delivery was made to the purchaser. The lumber remained all unmoved, and a part of it upon a lot of one of the plaintiffs. Indeed, the sheriff appears to have testified that he only sold Cottrell’s interest in it. Under these circumstances, it was not for the court to say that the subsequent removal of the lumber was a receiving from the sheriff, and that consequently there was no unlawful taking, and that the defendants were entitled to a verdict; and especially was it not for the court so to say when the plaintiffs’ claim was in part for carrying away lumber not sold by the sheriff, as appears from the charge of the learned judge, and as there was evidence that all the lumber was not sold. This alone would justify the refusal to affirm the defendants’ point, even if it were beyond doubt that Humphrey took all that he purchased by delivery from the sheriff. But there was no necessary constructive connection between the possession of the sheriff and that subsequently taken by the defendants. In Higginson v. York, 5 Mass. 341, the case was that one Phinney having entered the close of B., and cut cord wood, sold it to one Kenniston, who afterwards went with York the defendant to the close and removed the wood, without any knowledge that a trespass had been committed by Phinney. It was ruled that the value of the wood might be recovered against the defendant in trespass. The taking was unlawful, though the wood had been purchased from the first trespasser, for it was not obtained by immediate delivery.
The remaining assignment of error is that the court submitted to the jury to find whether the defendants took the plaintiff’s lumber from the eddy lot, drawn after Cottrell left, when there was no evidence of such taking. The evidence, however, is not certified to us, and it is not all on our paper-books. We cannot therefore say that no such evidence was given.
The judgment is affirmed.