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it involves a denial of any title whatever in the person who makes the demand. In the case before us the defendants “ declined to deliver any more lard.” This was, in effect, an assumption that they had in their possession no more belonging to the plaintiff. At least he had a right to infer from their answer to his demand that they would deliver to him no more lard unless compelled to do so by action at law. And having thus assumed a position relative to the property inconsistent with his title, he had, further, the right to infer that a tender to the defendants for their services would be unavailing. We are of opinion that the facts proved are sutficient to sustain the judgment.
There is a point made as to the jurisdiction of the court. This case was tried by the Hon. Thomas S. Stanfield, judge of another circuit, at a special term held in June, 1853 ; and is contended that all the steps required by law to authorize such special term have not been taken. 2 R. S., p. 5, s. 3. We have heretofore decided that the above special term was held in conformity with the statute just cited. Murphy v. Barlow, 5 Ind. R. 230.
The judgment must be affirmed.
PER CURIAM. The judgment is affirmed, with five per cent damages and costs.
H. P. Biddle, for the appellants.
MEXAL v. DEARBORN.
SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1859.
[Reported 12 Gray, 336.] ACTion of tort for taking a quantity of calf skins. The declaration in one count alleged title in the plaintiff; and in another a lien for work done upon them by the plaintiff as a currier. Answer, that the goods belonged to William Jameson, and were taken possession of under a warrant issued in proceedings in insolvency against Jameson, directed to the defendant as messenger.
At the trial in the superior court of Suffolk at September term 1857, the plaintiff offered evidence that the calf skins were left with him by Jameson to be curried ; and that when the work was partially done, Jameson sold them to him in payment of a debt due him, a part of which was for the work done on these skins, and gave a bill of sale thereof to the plaintiff, in whose possession they then were.
It appeared that proceedings in insolvency were duly commenced against Jameson soon after this sale; and a warrant issued to the defendant as messenger, on which he took the skins. The defendant offered evidence that the sale to the plaintiff was fraudulent and void as against Jameson's creditors.
The plaintiff claimed to recover the whole value of the skins, on the ground that the sale was not fraudulent; and also to recover on the second count, the amount of work performed on the skins, on the ground that he had a subsisting lien on them therefor.
Abbott, J. ruled, “ that if the plaintiff bought the skins of Jameson, taking a bill of sale of them, together with the possession, and this purchase was good as between the parties, then if the jury were satisfied that the sale was fraudulent as against the creditors of Jameson, and that when the defendant took them the plaintiff claimed under said bill of sale to him, and not on the ground of having a lien on them, and had so continued in his claim till the commencement of this action, never demanding the amount of his lien of the defendant, or notifying him that he claimed any, but persisting in his claim under the sale to him, the plaintiff would not be entitled to recover on the second count the amount of his lien.” The jury returned a verdict for the defendant, and the plaintiff alleged exceptions.
F. J. Butler, for the plaintiff.
MERRICK, J. By purchasing the calf skins, which had been put into his possession to be curried, and by taking a bill of sale thereof, and afterwards, to the time of the commencement of this action, claiming them solely under that title, without having given notice of any other to the defendant when he took them away in discharge of his duty as messenger under the proceedings in insolvency against the vendor, the plaintifflost or waived the lien which he had previously acquired. A good and sufficient consideration was paid for the transfer of the property, and as between the parties to the contract the sale was absolute and complete. The ownership thus obtained was entirely inconsistent with the existence of the previous lien. A lien is an incumbrance upon property, a claim upon it which may be maintained against the general
But there is no foundation upon which he who owns the whole can create a special right in his own favor to a part. The inferior or partial title to a chattel necessarily merges in that which is absolute and unconditional, when both are united and held by the same individual. This is a general consequence. But in the present instance, it is obvious that the parties extinguished, and intended to extinguish, the lien which had been previously created upon the calf skins; for the value of the work and labor which had previously been bestowed upon them by the vendor was by their express agreement made part of the consideration of the sale. After such a transaction the ghts of the parties were wholly changed. The vendor could no longer assert any claim to the property, and the workman had none against his employer. His debt had been paid, the property had become his own, and a lien upon it in his own favor thereby rendered both needless and impossible.
But the result is the same if the facts upon which the ruling excepted to in the superior court was made are considered in another aspect. The law will not allow a party to insist upon and enforce in his own
behalf a secret lien upon personal property after he has claimed it unconditionally as his own, and has thereby induced another to act in relation to it, in some manner affecting his own interest, as he would,, or might, not have done if he had been openly and fairly notified of the additional ground of claim. It would be fraudulent in him to practise such concealment to the injury of others; and to prevent the possibility of attempts so unjust becoming successful, the law implies that an intended concealment of that kind is of itself a waiver of the lien. The authorities cited by the counsel for the defendant, not less than its intrinsic reasonableness, fully warrant the ruling to which the plaintiff objected.
JOHNSON V. STEAR.
COMMON PLEAS. 1863.
(Reported 15 C. B. N. S. 330.) This was an action brought by the plaintiff as assignee of one Mathew Cumming, a bankrupt, for the alleged wrongful conversion by the defendant of 243 cases of brandy and a pipe of wine.
The defendant pleaded not guilty and not possessed, whereupon issue was joined.
The cause was tried before Erle, C. J., at the sittings in London after last Easter Term. The facts as proved or admitted were as follows: On the 26th of January, 1862, the bankrupt, Cumming, applied to the defendant for an advance of £62 10s. upon the security of certain brandies then lying in the London Docks. The defendant consented to make the advance, and Cumming gave him his acceptance at one month for the amount, at the same time handing him the dock-warrant for the brandies and the following memorandum :
“I have this day deposited with you the undermentioned 243 cases of brandy, to be held by you as a security for the payment of my acceptance for £62 10s. discounted by you, which will become due January 29, 1863; and, in case the same be not paid at maturity, I authorize you at any time, and without further consent by or notice to me, to sell the goods above mentioned, either by public or private sale, at such price as you think fit, and to apply the proceeds, after all charges, to the payment of the bill; and, if there should be any deficiency, I engage to pay it.
(Signed) M. CUMMING." Then followed an enumeration of the marks and numbers on the cases.
On the 3d of January, Cumming obtained from the defendant a further advance of £25 upon the security of a warrant for a pipe of port
wine, with an I. 0. U. and a post-dated check (7th January), but no distinct authority, as in the case of the brandies, to sell on default of payment on a given day.
Cumming absconded on the 5th of January, and was declared a bankrupt on the 17th; and the plaintiff was afterwards appointed assignee.
On the 28th of January, the defendant contracted to sell the brandies to Messrs. Ruck & Co. On the 29th (the day on which Cumming's acceptance became due) the dock-warrant was delivered to them, and on the 30th they took actual possession of the brandies. The check given by Cumming for the second advance being also dishonored, the defendant sold the wine for £10. The demand and refusal were on the 27th of February.
On the part of the defendant it was submitted that there was no conversion, and that the transactions were protected, the adjudication being now the dividing line; and that, at all events, the plaintiff was only entitled to nominal damages for the premature sale of the brandies, – it being assumed that the bankrupt had no intention to avail himself of his right of redemption.
Under the direction of the learned judge, the jury returned a verdict for the plaintiff, assessing the value of the wine at £40, and that of the brandies at £62 108. ; and leave was reserved to the defendant to move to enter a verdict for him if the court should be of opinion that the plaintiff was not entitled to recover.
Powell, in Trinity Term, moved for a rule accordingly.
ERLE, C. J., now delivered the judgment of the majority of the court.
In trover by the assignee under the bankruptcy of one Cumming, the facts were that Cumming had deposited brandy lying in a dock with one Stear, by delivering to him the dock-warrant, and had agreed that Stear might sell, if the loan was not repaid on the 29th of January ; that, on the 28th of January, Stear sold the brandy, and on the 29th handed over the dock-warrant to the vendees, who on the 30th took actual possession.
Upon these facts, the questions are, — first, was there a conversion ? and, if yes,
- secondly, what is the measure of damages? To the first question our answer is in the affirmative. The wrongful sale on the 28th, followed on the 29th by the delivery of the dockwarrant in pursuance thereof, was, we think, a conversion. The defendant wrongfully assumed to be owner in selling; and, although the sale alone might not be a conversion, yet, by delivering over the dock-warrant to the vendees in pursuance of such sale, he interfered with the right which Cumming had of taking possession on the 29th if he repaid the loan; for which purpose the dock-warrant would have
1 Consisting of himself, Byles, J., and Keating, J.
been an important instrument. We decide for the plaintiff on this ground : and it is not necessary to consider the other grounds on which he relied to prove a conversion. Then the second question arises.
The plaintiff contends that he is entitled to the full value of the goods sold by the defendant, without any deduction, on the ground that the interest of the defendant as bailee ceased when he made a wrongful sale, and that therefore he became liable to all the damages which a mere wrong-doer who had wilfully appropriated to himself the property of another without any right ought to pay. But we are of opinion that the plaintiff is not entitled to the full value of the goods. The deposit of the goods in question with the defendant to secure repayment of a loan to him on a given day, with a power to sell in case of default on that day, created an interest and a right of property in the goods which was more than a mere lien : and the wrongful act of the pawnee did not annibilate the contract between the parties nor the interest of the pawnee in the goods under that contract.
It is clear that the actual damage was merely nominal. The defendant by mistake delivered over the dock-warrant a few hours only before the sale and delivery by him would have been lawful; and by such premature delivery the plaintiff did not lose anything, as the bankrupt had no intention to redeem the pledge by paying the loan.
If the plaintiff's action had been for breach of contract in not ke ng the pledge till the given day, he would have been entitled to be compensated for the loss he had really sustained, and no more: and that would be a nominal sum only. The plaintiff's action here is in name for the wrongful conversion ; but, in substance, it is the same cause of action; and the change of the form of pleading ought not in reason to affect the amount of compensation to be paid.
There is authority for holding, that, in measuring the damages to be paid to the pawnor by the pawnee for a wrongful conversion of the pledge, the interest of the pawnee in the pledge ought to be taken into the account. On this principle the damages were measured in Chinery v. Viall, 5 Hurlst. & N. 288. There, the defendant had sold sheep to the plaintiff; and, because there was delay in the payment of the price by the plaintiff, the defendant resold the sheep. For this wrong the court held that trover lay, and that the plaintiff was entitled to recover damages; but that, in measuring the amount of those damages, although the plaintiff was entitled to be indemnified against any loss he had really sustained by the resale, yet the defendant as an unpaid vendor had an interest in the sheep against the vendee under the contract of sale, and might deduct the price due to himself from the plaintiff from the value of the sheep at the time of the conversion.
In Story on Bailments, $ 315, it is said : “ If the pawnor, in consequence of any default or conversion by the pawnee, has recovered back the pawn or its value, still the debt remains and is recoverable, unless in such prior action it has been deducted : and it seems that, by the common law, the pawnee in such action for the value has a right to