Wellington v. Drew , 16 Me. 51 ( 1839 )

The opinion of the Court was by

EaiERY J.

Tins comes before us on exceptions from the Court of Common Pleas, against the Judges’ ruling in an action of trespass de lonis asyortatis. The plaintiff’s witness testified, that the plaintiff left in bis possession at Houlton, in November or December, a quantity of tanned calf skins, to be kept safely for him till he came back in February following, that the witness had no authority from the plaintiff to sell the skins, nor right to authorize or permit another to do so, that he, the witness, never did sell the skins, nor give permission to any one else to do so; that tbe defendant came to witness’ bouse with one Whitney to examine the skins, saying the plaintiff had authorized him to dispose of the same. Witness shew them the skins. On a subsequent day, the defendant sold the skins with others of his own, in exchange for broadcloth, to said Whitney. That the skins were taken away from his, the witness’, house accordingly, that the defendant brought the witness eight dollars, as part of the proceeds of the sale of the skins, and requested him to give the same to the plaintiff, which he did, and the plaintiff received the same, and requested the witness to call upon the defendant for the balance. The witness could not say whether he called upon the defendant for the balance or not. Upon this evidence the Judge ruled, that the action of trespass could not be maintained, as the evidence disproved any tortious taking.

It is contended, that it ought to have been left to the jury whether the taking was tortious or not, and that the plaintiff did not contemplate or assent to any sale for broadcloth. That it can make no odds to defendant whether he is charged in trespass or as-sumpsit, and that it was not competent for the Court to order a nonsuit. It does not appear that the Judge did order a nonsuit. The exceptions are against the ruling of the Judge, that the action of trespass could not be maintained, as the evidence disproved any tortious taking. Whereupon the plaintiff was nonsuit.

But we think the ruling of the Judge was entirely correct. There was no secresy in the defendant’s proceeding. He stated that the plaintiff had authorized him to dispose of the skins. A portion of the money received as the proceeds of the skins was paid to the plaintiff. On receiving it, not a syllable of complaint was uttered, but the witness was requested to call on the defendant for the balance, thus ratifying the doings of the defendant and confirming his representation to the witness. And we cannot doubt of the good judgment of the plaintiff’s counsel in adopting a nonsuit, rather than hazard the taking of a verdict.

The exceptions are overruled.