17 Barb. 446 | N.Y. Sup. Ct. | 1854
It is now insisted, on the part of the defendants, that the circuit court erred in refusing to nonsuit the plaintiffs, upon the ground that no joint taking by the defendants was proved. It is not denied that the taking by the defendant Chamberlin was fully proved. For aught that appears, he still has the goods in his possession ; and if the taking was wrongful, it is difficult to perceive what ground of complaint he can have, on account of the other defendants being joined with him in the action, assuming that there was no evidence of such interference by them as to render them wrongdoers. If nothing appeared, either in the pleadings or evidence, to charge them, they might be entitled to, a nonsuit; and in- that case it would be perfectly regular for the plaintiff to- go on against Chamberlin and try the issues between him and the plaintiffs. The nonsuit, however, was not asked for as to the Haydens, but the judge was requested to nonsuit the plaintiffs generally, as to all the defendants. This was asking too much, and the nonsuit was properly refused, on that ground. In respect to the difficulty suggested upon the argument, of ordering a return of the goods to the defendants in ease the plaintiff should fail altogether, none such exists, as the court undoubtedly has the power to adjudge a return in favor of such of the defendants as should appear to be entitled to a return, and to refuse it as to such of them as were not.
The defendants, the Haydens, by their, answer, admit themselves in possession of a portion of the goods in question, and pray a return of the goods, generally, to themselves. There is evidence tending to show that the defendant Chamberlin levied upon and held the goods subject to the chattel mortgage of his co-defendants, the Haydens, who claimed possession by virtue of that mortgage ; and I think the judge at the circuit decided correctly in refusing to allow them to amend their answer by striking out the admission. Besides, it was a question of discretion with him, which, if not greatly abused, is not to be interfered with.
The defendants’ counsel also contends that the judge erred in refusing to charge the jury that if they found the exclusive
It is also urged that the judge erred in refusing to charge as requested on the question of assessment of the value of the property, as against the Haydens. This point is based upon the absence of evidence of the value of the goods admitted in the answer of the defendants Haydens, to be in their possession. It appears by the testimony of the witness Weatherhead, that the goods replevied were selected by him from the goods in the store of Daily at Churchville, and that they were the same which were sold by the plaintiffs to Daily on the 18th of October, 1851, and that their value was over $50. That the purchase of the bill of goods on that day, and which is claimed to have been fraudulent, amounted to $434.30. That is the amount claimed in the complaint to be the value of the goods taken, which is denied in the answer of the Haydens, but not in that of Chamberlin. The defendant Chamberlin denies in his answer that the defendants Haydens had any possession of the property delivered to the plaintiffs by virtue of the proceedings in this action, and avers that the same were in his exclusive possession and under his control. One of the questions which appears to have been litigated at the trial, was whether the Haydens had any possession whatever, they contending that they had none. The evidence however shows that they claimed the entire possession by virtue of their chattel mortgage, in hostility both to the sheriff and the plaintiffs, and, as before remarked, there was evidence to show that the sheriff levied upon and held them in
Another ground upon which the defendants now ask for a new trial is, that the judg'e refused to charge the jury; as requested, that if they should believe that the agent of the plaintiffs, on due inquiry on the 6th November, 1851, became satisfied, and suffered the goods to remain in Daily’s possession, the plaintiffs were to be regarded as having affirmed the sale, and that there should therefore be a verdict for the defendants.
Admitting the plaintiffs by their agent did become satisfied that no fraud had been practiced upon them by Daily, still; if the fact were otherwise, it only proved that the agent was mistaken. It clearly would not make the title in Daily any better; and unless the right of a bona fide purchaser became vested or was affected by the examination of the agent and the conclusion he arrived at in consequence thereof, it was not necessarily a reason why the jury should find a verdict for the defendants.
It is also urged, in support of the present motion, that the Haydens are to be regarded in the light of bona fide purchasers, and are to be protected tin that ground. That the judge at the circuit having declined so to advise the jury; and having held that they were not to be so regarded, a new trial should be ordered; In Malcom & Gaul v. Loveridge and others, (13 Barb. S. C. R. 372,) we held that a boná fide purchaser or mortgagee of goods, for a valuable Consideration, from a pefsoti in possesion, who obtained them from the’ owners by false pretenses, amounting, under the statute, to felony, will hold them against the first vendor, provided such vendor voluntarily parted with the possession, and intended to part with the title. In
Welles, Johnson and T. R. Strong, Justices.]
A new trial should be denied:
