35 Md. 163 | Md. | 1872
delivered the opinion of the Court.
This action was brought by the appellant to recover damages from the appellee for the conversion of a promissory note, given to the appellant by the Rockland and Venango Coal Oil Company, for $5,000, dated the 21st of January, 1865, and payable sixty days after date. The appellee pleaded the general issue, and also “ that he did what is complained of by the plaintiff’s leave.”
That part of the proof in the case to which it is necessary more particularly to refer for a proper understanding of the question presented by this appeal, is as follows: The appellant, it appears, had sold to the Rockland and Venango Coal Oil Company certain oil lands, known as the Blakely Well, for twenty thousand dollars, of which ten thousand dollars were to be paid in cash on the delivery of the deed, five thousand to be secured by the note of the Company at sixty days, and five thousand dollars to be paid in the stock of the Company at $2.50 a share. The sale was duly consummated according to these terms. A deed was executed, the cash payment made, and the note in question delivered to the appellant. This note was afterwards placed by him in the hands of the appellee for collection. While, so held certain disputes and difficulties arose between the Company and the appellant—
Upon this state of the proof the defendant’s counsel prayed the Court to instruct the jury, “that if they shall find from the evidence that the plaintiff and the defendant were jointly interested in the note, for the conversion of which this action of trover is brought, and that the said note was left by agreement between them in the hands of the defendant for collection, then the plaintiff cannot recover.” This instruction the Court granted, and the propriety of so doing forms the subject of inquiry upon this appeal.
It is undoubtedly the general rule, that a tenant in common cannot maintain trover against-his-Go-tenant. The right of possession lies at the foundation of the action, and where two are equally entitled to possession, he who has it cannot be guilty of a conversion by retaining it. But there may be such an use, or rather misuse, of the joint property as will constitute a conversion, and enable a plaintiff to support trover against a party who is jointly interested with him in the ownership. Where there has been a destruction of the joint property by one of the parties, all the authorities concur in the right of the other to maintain this form of action to recover such damages as will compensate him for the loss of
It is not controverted, that trover may be maintained for dioses in action as well as for other personal property. It therefore follows from what has been said, that this action could have been maintained against the appellee, assuming he was joint owner of the note with the appellant, if ho had either sold or destroyed it. Certainly the surrender of it to the Rockland and Venango Coal Oil Company, who were the drawers of it to be by them cancelled or destroyed, (for that was the purpose of the surrender,) if done without the authority of the appellant, is as much an assumption of the right of disposing of another’s property as could have resulted from its sale or destruction. This being so, the authority to make the surrender became an important question of fact. Testimony upon this point had been produced by both of the parties, and the instruction of the Court should not have precluded the jury from passing upon it. If the surrender was made by the authority or with the consent of the appellant, he was not entitled to recover, but if otherwise, and the note was surrendered without authority, the action should have been maintained. But by the instruction of the Court the consideration of this branch of the case was entirely withdrawn from the jury, and their inquiry limited to the question only of a joint ownership of the note — for the direction given them is, that the plaintiff cannot recover if they find
It is true, as was held in Whiteford vs. Burkmyer & Adams, 1 Gill, 127, that a party may segregate certain facts offered in proof, and ask an instruction upon them from the Court. But when so segregated the conclusion arrived at in the instruction must be consistent with the truth of the other facts offered in evidence. In other words, if found to be true they must support the theory of the prayer, non obstante the truth of other facts offered in proof; for if these latter, while not inconsistent with the truth of the facts upon which the instruction is based, would in conjunction with them establish in law a different theory and a different result, the prayer ought not to be granted. Riggin vs. Patapsco Ins. Co., 7 H. & J., 291; Bosley vs. Chesapeake Ins. Co., 3 G. & J., 462; McTavish vs. Carroll, 7 Md., 366; Adams vs. Capron, 21 Md., 205. In the present case the fact of the surrender of the note /"in question, without the authority of the appellant, is not inconsistent with a joint ownership by him and the appellee, but it is wholly inconsistent with the instruction of the Court I directing the jury, that the plaintiff cannot recover if they shall find that he and the defendant are jointly interested in the note. Such a result does not follow, if it be true, as the 'instruction in the form in which it is granted must assume, that the surrender of the note to the Coal Oil Company was without authority, for, as we have seen, it is then no sufficient answer of the appellee^ to the charge of a tortious conversion of the appellant’s property, to say that he is not liable in trover simply because the thing converted was the subject-matter of a joint ownership between the parties.
For these reasons the judgment of the Court below will be reversed and a new trial directed.
Judgment reversed and
new trial granted.