28 Minn. 147 | Minn. | 1881
Action for converting a wagon and a quantity of hay. The answer sets up, as a counterclaim, a cause of action for the conversion by plaintiffs of a quantity of hay belonging to defendant. The plaintiffs replied, putting in issue the facts alleged
As to the conversion of the wagon, the testimony was that a servant of defendant, engaged in hauling a load of supplies to defendant’s logging camp, broke the wagon he was using, and, to enable him to do the hauling, took part of plaintiffs’ wagon, and the part was not returned. The servant did not act from any malice or purpose to injure plaintiffs, but acted solely with a view to serve the interests of his master, and accomplish what he had been set to do for him. It is often difficult, where a servant, in doing his master’s business, commits a trespass upon the property of another, without express authority from the master, to determine whether the master is liable for the trespass. The general rule derived from an examination of the authorities is stated in Wood’s Law of Master and Servant, 595, thus: “If the act of the servant was necessary to accomplish the purpose of his employment, and was intended for that purpose, however ill-advised or improper, then it was implied in the employment, and the master is liable. ” This rule seems to us correct as far as it goes. But it may be suggested, though we do not decide, that the master’s liability will not depend on the existence of actual necessity to do the act in order to accomplish the purpose of the employment, if the servant, in the exercise in good faith of the judgment and discretion ordinarily expected of a servant in doing his master’s business, deems it necessary, and so does the act in good faith, not for himself, but for his master, and to accomplish his master’s business in which he is employed.
There was some evidence that, by the removal of the part of the wagon, the remainder was rendered valueless. As to this, the court instructed the jury, in effect, that if taking the part rendered the wagon valueless for the use for which it is intended, the plaintiffs are entitled to recover the value of the wagon at the time of the conversion. This rule is not strictly accurate. If taking a part wholly destroyed the value of the wagon, so that the part not taken was of no value whateyer for any purpose, the taking was equivalent to a conversion of the whole; and, in that case, the value of the whole,
Defendant’s evidence of the counterclaim tended to show that part of the hay constituting the subject of counterclaim was converted by a partnership consisting of these plaintiffs and one Bergman, whose firm name was Bergman & Co. The court charged the jury that proof that Bergman & Co. took and converted to their use hay belonging to defendant, cannot be considered as tending to establish a cause of action against Walker, Judd & Yeazie. This was error. The cause of action alleged in the answer, being in no way connected with the subject of plaintiffs’ action, was not proper matter of counterclaim. But the only way to make the objection that a cause of action alleged as a' counterclaim is not the proper subject of counterclaim in the particular action is by demurrer. If plaintiff omits to demur on that ground, and takes issue upon the facts alleged, he waives his objection to the character of the cause of action as a counterclaim in that action, and consents that it may be tried and determined as if it were proper to plead it as a counterclaim. Ayres v. O’Farrell, 10 Bosw. 143; Hammond v. Terry, 3 Lansing, 186.
The only question, then, is, did the evidence alluded to by the court in its charge tend to prove a cause of action upon which defendant could have recovered against these plaintiffs, had he sued them'upon it without joining Bergman? The cause of action being in tort, the wrong-doers were each and all of them liable. Any of them might be sued for it without joining the others. It was no objection,
