Hewes v. Parkman , 37 Mass. 90 ( 1838 )

Sha.w C. J.

delivered the opinion of the Court. This ts an action of trover against an officer for an attachment of the goods of a firm, of which the plaintiff was one member, and the gravamen is, that after the attachment, the defendant delivered the goods to F. & L. Winship, the attaching creditors, taking their receipt for them, that afterwards the action came to judgment, that the goods were not taken in execution, that the plaintiff afterwards demanded them, but that they were not returned.

The defence was, that after the attachment, it was agreed between the attaching creditors of the one part, and Handel Winship, one of the firm of Winship & Hewes, who were the defendants in that suit, on the other part, that the goods, some of which were perishable, and likely to waste by keeping, should be appraised, and the proceeds thereof applied to the payment of the debts of the firm, that this arrangement was afterwards ratified and confirmed by the plaintiff, and notice of it given to the defendant, the attaching officer, thereby dispensing with his calling on the receipters for the property, to be restored. It was left to the jury to find whether the plaintiff had so ratified this agreement, and it was found by their verdict that he had. The evidence was somewhat contradictory upon this question ; but it was fully submitted to the jury, and was sufficient to warrant their verdict. It was contended, however, that what was a ratification, was a question of law for the court; and as the evidence is detailed, and especially as the plaintiff persisted in continuing to prosecute his suit, it could not be legally inferred, that he had ratified the doings of his partner, which the suit sought to impeach. But we think it was rightly left to the jury, to find the facts, with proper directions as to the law. The judge instructed the jury, that if they were satisfied that the plaintiff had confirmed and approved such doings and proceedings, with a full knowledge of all the material facts, they should find a verdict for the defendant, otherwise for the plaintiff. It was equivalent to instructing them that such approval and confirmation, if given with a full knowledge of all the facts, was, in point of law, a ratification. The plaintiff’s expression about beginning in the law and ending in the law, was evidence bearing on the fact whether on the whole the plaintiff approved or not, and of course, with the rest of the evidence, was for the consideration of the jury.

But it was contended that this direction was wrong in this respect, that the attachment and the subsequent misapplication of the attached property, was a naked wrong, and though the subsequent assent of the plaintiff might reduce the claim to nominal damages, it would not purge the wrong, and therefore that the action would still lie for nominal damages. As where goods wrongfully converted are afterwards returned, trover will still lie, though if the goods were returned speedily and in as good plight as when taken, the damages would be merely nominal. But we think that rule not applicable to this case, because the very question here is, whether there has been an unlawful conversion, either by an original illegal taking, or by a subsequent illegal application of the goods.

In the first place it is contended, that the attachment was wrongful, because it included tools of trade. The exception of tools of trade is a privilege given by law to the debtor, which he may waive, and if he assents to the attachment of them, such attachment is not wrongful. If such assent is given by one partner and afterwards assented to by the other, such assent must be considered as relating back, so as to make the attachment good ab initio. The other wrong complained of is in suffering the goods to be used after the attachment. But in this case the goods were delivered to the judgment creditors, upon their receipt, immediately after the attachment, and it was agreed by the partner Handel Winship, one of the defendants, and professing to act for both, that the goods should be taken, at an appraisement, for the payment of the debts of the firm. The most that can be said of this act is, tnat it was voidable by the plaintiff, the partner who did not assent to it, at his election, and if he afterwards assented to it, this made it good from the beginning. In general, when a stranger, in the absence of another, undertakes to represent him, and act in his behalf, and afterwards the principal shall adopt and ratify the act as his own, it shall bind him. Ratihabitio retrotrahitur et mandato (equiparatur. The act of a partner, claiming a right to act for both, when thus assented to by the other partner, cannot be less valid.

The Court are of opinion, that the subsequent assent to and ratification by the plaintiff, of the agreement of his partner to the sale of the goods, at an appraisement, for the nay-men t of the debts of the firm, rendered that sale valid, that the assent to the attachment of tools rendered that attachment good as against the plaintiff, and that the officer, upon notice of such sale, was exempted from further liability to reclaim and restore the goods to the debtors, and therefore that this action cannot be maintained.

This renders it unnecessary to give any opinion on the question, whether one of two partners can maintain trover for partnership goods, when the defendant does not plead in abatement.

Judgment on the verdict.