13 Fla. 523 | Fla. | 1869
delivered the opinion of the court.
This was an action of trover brought by appellant in the Circuit Court for Madison county. The facts are as follows :
Benjamin O. Grenad sold to appellant, (plaintiff in the court below,) Watts, in July, 1862, one hundred two-year old steers for one thousand dollars, which sum was paid by plaintiff. The cattle sold were a part of the “ Lester stock,” which stock numbered about four thousand. The cattle were running at large in the range, and the vendor (Grenad) addressed the following delivery order to one of his stock minders:
“ Witness, J. M. Hendey. “ Benj. O. Gbenad.”
Upon the next day the vendor (Grenad) addressed a similar order to Yaughn. The one hundred head of cattle were never separated from the herd of four thousand, and there has never been any identification of the precise one hundred in which the vendee (Watts) has a property under this sale. On the 4th of August, 1862, Grenad sold the balance of the “ Lester stock ” to J. M. Hendry, and by virtue of subsequent sales, the property in the balance of the stock, exclusive of the one hundred sold Watts, became vested in Heal Hendry, the defendant, he assuming the liability for plaintiff’s claim and having full knowledge of the facts recited as to the sale. The defendant thus became possessed of the entire “ Lester stock,” among which were the one hundred purchased by plaintiff as aforesaid. On the 23d of October, 1862, the defendant and John M. Hendry joined in a note to the plaintiff in the language following :
Madison O. H., October 23, 1862.
Me. Joseph B. Watts:—JDeab Sib :—As you hold a claim for one hundred steers, two years old last spring, out of the stock known as the “ Lester stock,” owned by us, and as several months have passed since you bought them and you have not'yet got said cattle out of the stock, and to prevent any difficulty in the future, and as we are not willing to let them run and run the risk of the cattle and then allow you to claim the full number and increase of age, you are hereby notified to drive them out or alter the mark and brand by the 25th day of December next, or this notice shall be a bar to any claim held by you or any other person in your name.
Yours respectfully,
Heal Hendey,
John M. Hendey.
There are several errors assigned, but we-think it necessary to consider only the last assignment, which is £; that the eom’t erred in refusing to grant the motion for a new trial, the verdict being clearly contrary to the law and the evidence.”
The appellee here relies upon two points to sustain the judgment :
Eirst. It is contended that plaintiff did not have a right of possession to the cattle, as there remained something to be done upon the part of the vendor which was necessary to complete the sale, viz : the gathering, separating and delivery of the one hundred head of cattle; that the separation and identification of the one hundred cattle was .necessary before the vendee could acquire a property in any specific chattel, or a right to the possession of any specific chattel, which it is claimed is necessary to maintain trover.
Second. It is contended that “ even if it should be considered that the defendant was in possession of the cattle in dispute, and that he knew of the sale to the plaintiff, and had agreed with the plaintiff to gather them and separate them from the herd and deliver them to the plaintiff, he would in law, and upon this state of facts, have been a bailee of the plaintiff, and a demand and distinct refusal would have been necessary before trover could be maintained.”
As to the last point, we remark that when a person as
The only witness examined to the point in this case states that the defendant has, since the notice, exercised control and ownership, to the exclusion of plamtiff, over the whole mark and brand of the Lester stock. If this be true, and there is no conflict in the evidence upon the subject, we are entirely satisfied that the case, so far as the matter of conversion was concerned, is fully made out, and that the evidence and law is plainly with the plaintiff. What acts may be done by a party coming lawfully into the possession of the property of another, and his precise duty in reference to it, is fully discussed in the preceding ease of Robinson vs. Hartridge, and we deem it unnecessary to go over the same ground here. As to the first ground upon which defendant seeks to sustain the judgment, we think it may be admitted, for the sake of argument, that if the defendant had remained passive and had made no acknowledgment of property in the plaintiff, that the defence would have been good and it would not affect this case. A different case is presented when defendant admits the property of the plaintiff in cattle of a given age
In Steward vs. Dunkin, 2 Camp., 344:, it was expressly held by Lord Ellenborough that a warehouseman who, on receiving an order from the seller of malt to hold it on account of the purchaser, gave a written acknowledgment that he so held it, could not set up as a defense in trover for not delivering it to the purchaser, that the property in the malt sold was not transferred until it was remeasured. Lord Ellenborough there says: “ Whatever may be the rule between buyer and seller, it is clear the defendants cannot say to the plaintiff, ‘The malt is not yours,’ after acknowledging it to be his.” Haws and Another vs. Watson and Another, 2 Barn. & Cress., 540. A. sold to B. a quantity of tallow at so much per cwt., and gave a written order to the wharfinger to weigh, deliver, transfer and rehouse the same. B. sold it to C., giving C. an acknowledgment of the wharfinger that he had transferred it to C. B. became insolvent, and A. gave notice not to deliver to B. It was held that after the wharfinger’s acknowledgment, they could not set up as a defence a right in the original vendor to stop in transitu because something remained to be done on the part of the seller to make a perfect delivery.
The vendor, drenad, in such a case as this, in the event the price had not been paid, would have perhaps had a seller’s lien, as there was no such surrender of actual possession as would have divested it, but this is not the case here.
Lord Ellenborough in Hanson vs. Meyer, 6 East, 614:, says that “ if anything remains to be done on the piart of the seller as between him and the buyer before the commodity purchased is to be delivered, a complete present right of property has not attached in the buyer, and of course this action, (trover,) which is accommodated to, and depends upon such perfect right of property, is not maintainable.” This ease
In this case the defendant purchased the entire “ Lester stock” knowing that plaintiff had purchased cmd paid for a certcmv wu/nriber of a certain age of this stoclc, and with this knowledge defendant addresses plaintiff a notice advising him that he knew that he, plaintiff, had purchased the cattle several months before, complaining that plaintiff has not moved the cattle, (thereby admitting his right so to do,) and notifying him to drive them out by a given time, or in the event he failed, that the notice should be a bar, &c. Here is a clear admission by defendant that he was at this time possessed of the cattle which are the subject of this action, and here is an express acknowledgment of property in the plaintiff in the cattle, and an invitation to come and take his (plaintiff’s) property thus acknowledged to be in his (defendant’s) possession.
In the case of Gillet vs. Hill, 2 Crompton & Meeson, 2, it appeared that plaintiff had purchased flour of one Orbell, taking an order upon defendants for the delivery of twenty sacks of flour. This order was presented to defendants’ foreman, who said they had not more than five sacks to spare5 and they might have that. Defendant’s clerk took the order and filed it. The defendants delivered to plaintiff five sacks upon another order the same day, and on the next day upon application for the balance, they said that plaintiff should have it as soon as they got any. Shortly after this another application was made, and defendants replied that they had
The question of acceptance was left to the jury, and there was a verdict for plaintiff. There was a rule for new trial upon which Yaugkn B. said, “ The defendants having accepted the order, admit the plaintiff’s right to call upon them to deliver twenty sacks of flour. If they were not in a condition to comply with the order, they should have communicated that fact when the order was delivered. But then it is said that the defendants have not appropriated any ¶wtíeular sacks, and several cases have been cited to this effect. In all those cases, however, if they are examined, it will appear that it was held essential that certain acts should be done, as weighing, &c., before the property vested, and as these acts had not been done, the plaintiff failed to prove an absolute property in himself. Here, however, the defendants admitted that they had twenty sacks in their possession, (the property of Orbell,) and they afterwards refuse to deliver fifteen of the number. I think there is sufficient evidence of property possession and conversion to sustain this form of action.”
So we think in this case defendant cannot set up that certain acts were necessai-y to pass the property as between ven- • dor and vendee, when he has admitted generally the property of the plaintiff in the cattle.
The value of cattle is as frequently estimated by age as in any other way. A conversion of a given number of a certain age is here established, and we see no difficulty in the case. On the other hand, a judgment for the defendant gives him a property in the cattle, and the plaintiff is deprived of his property without a remedy, for if trover is not
The judgment of the court below is in conflict with the law as applicable to tbe true state of facts in this case, and no one can doubt that its consequence is to give one man the property of another without any the least compensation.
The judgment is reversed and a new trial is awarded.