Larkins & Moore v. Eckwurzel , 42 Ala. 322 ( 1868 )

BYRD, J.

The main question in this case is,- whether upon the facts shown by the record, the action is maintainable against the appellants jointly ? There can be no doubt that under the law, and the facts in evidence, that the appellants are severally liable in trover. — Lee v. Matthews, 10 Ala. 682 ; Conner & Johnson v. Allen & Reynolds, 33 ib. 516. No case has been found by us, none brought to our notice by counsel, in which a joint action in trover, has been brought against the seller and buyer of a chattel, where the latter was a purchaser bona fide.

In the elementary works, no reference is made to the joint liability in trover of a seller and buyer, to the owner of a chattel. The reference made to the joint liability of parties in this form of action, are uniformly, if not universally, to parties who participated, in some way, in the original conversion.

In this case, when Moore took possession of the goods, under the evidence, he was liable for the conversion to the owner, and so would all persons who participated in that act have been, severally or jointly, liable with him, whether they knew or had notice of the claim of the owner or not. But as to the joint liability of the original tort-feaser and a person to whom he sold the goods without any notice of the claim of the owner, the question is more difficult of solution.

The absence of any case in point, and the failure of the elementary writers to make any reference to such a case, may be looked upon as persuasive to show that in the opinion of the profession, such an action is not maintainable. Upon principle, it would seem unjust to subject a bona-fide purchaser from a tortfeciser, to a joint suit with him, to the costs and damages which may be recovered in such an action, and to have them fixed upon him as a joint liability with his vendor.

Upon the other hand, if he were sued severally he could give notice to his vendor of the pending of the suit, and require him to defend it. And if there should be a recovery in the suit, his remedy against his vendor would be plain.

While we find no authorities directly in point, we conceive the reasoning employed and the principles announced in the following authorities, will susoain us in holding that the court erred in the charge given to the jury. — Cope v. Romeyne, 4 McLean, 384; Gage v. Epperson, 2 Head, (Tenn.) 669 ; Whitney v. Slanson, 30 Barb. 276 ; 3 Dane’s Abr. 209, § 11, and page 212, § 28; Babcock v. Gill & Gill, 10 John. 286; Sherry v. Picken, 10 Ind. 375 ; Tollman v. Tarck, 26 Barb. 167; Garrard v. Pittsburg, &c., 29 Penn. Rep. 154; Nicoll v. Glennie, et al., 1 Maule & Sel. 588; Glaze v. McMillion, 7 Porter 280. We do not intend to intimate that no case can arise in which a seller and buyer could be held liable jointly in trover.— White v. Wall, 40 Maine, 574.

The case of Nicoll v. Glennie et al., supra, is more in point that any case we have found, and Lord Ellenborough, in that case, remarks upon the importance of the question and absence of authorities upon it. We follow his ruling in that case. The only other questions argued by the counsel for appellants, although they have assigned other matters, relate to the introduction of two bills of lading in evidence by the appellee, and the refusal of the court to allow appellants to introduce secondary evidence of the execution and contents of a receipt alleged to have been given by the appellee. And as upon another trial both parties may improve their evidence on these points, and it will be probably different from that upon the record, we will not pass upon the exceptions reserved by appellants upon the rulings of the court thereon. For the error in the charge of the court, the judgment must be reversed and cause remanded.

Judge, J., not sitting.

BYRD, J.

We have carefully examined the record, the application for a re-hearing, and the foregoing opinion ; and, in response to the application, we have come to the conclusion to adhere to that opinion. In the case of White v. Demary et al., 2 N. H. 546 ; (see, also, Powery v. Sawyer, 46 Maine, 160; Moody v. Whitney, 34 ib. 563 ; Drake v. Barrymore, 14 John. 166 ; 2 Scam. 448 ; 2 Hill on Torts, 467, § 26; Layman v. Hendrix, 1 Ala. 212,) the court say, “ when an action sounds in tort, and is against more than one person, judgment can not be had against more than one, without evidence of a joint wrong. A separate wrong by each, entitles the sufferer to only a separate action against each.” And the court further say, that had the action been ex contractu, a neglect of one would have subjected both. But being ex-delicto, the defendants to be all liable, must all have actually perpetrated the wrong, or directed it to be done.” The facts of that case are not identical with those of this, but sufficiently so for the application of the principles announced, to the facts of this case.

And in Hilliard on Torts, it. is said that a person who knowingly receives from another a chattel, which the latter has wrongfully seized, and afterward, on demand refuses to give it back to the owner, does not thereby become a joint trespasser, unless the chattel was seized for his use. “So where A. took and converted the mule of plaintiff and sold it to B.,” it was held that the original taking by A. and the detention byB. were separate causes of action. — p. 448.

But it has been held that where a consignee, with power to sell, sells with intent to defraud the consignor, which intent is known to the purchaser, the seller and buyer are jointly liable in trover.— White v. Wall, 40 Maine, 574. Which is consistent with the doctrine held by us in the opinion heretofore delivered in this case. And these cases, with those cited heretofore, clearly draw the line of distinction which runs between those cases in which a joint action in trover lies against a buyer and seller, and those in which it does not. In trover against several defendants, all can not be found guilty on the same count, without proof of a joint conversion by all. And if they all join in an act with the intent to deprive the owner of property, or to convert it to the use of one or both, they are jointly liable, whether the act be one of sale and purchase, or of any other character. But the sale by one who has converted the property of another, to an innocent purchaser, can not sustain a joint action, in form ex-deleoto, against the seller and buyer.

Although all the evidence is not set out, yet enough is set out to show that the charge is erroneous. — Lachett v. McCord, 23 Ala. 851; Moore v. Clay, 24 Ala. 235 ; Hines, et ux., v. Trautham, 27 Ala. 359.