Scott v. Perkins , 28 Me. 22 ( 1848 )

The opinion of the Court was drawn up by

Whitman C. J.

— The first ground of exception is to the

admission of the deposition of Stephen Curtiss. It is insisted that it is not in conformity to the statute, c. 133, <§> 17, inasmuch as the caption does not specify the kind of action in reference to which it was taken. The statute provides, that it shall state “ the cause in which the deposition is to be used.” It is argued that the word “ cause” means “ kind,” and, therefore, the kind of action should be named. If such was the intention of the Legislature it is not easy to perceive why it should not have expressed itself in more appropriate terms for the purpose. The word “ cause” is applicable to every species of action. It is a general term. The intention doubtless was, that the adverse party should be apprised of the particular action in which a deposition might be intended to be used. This would be as effectually done by naming the parties and the court where the action was pending, if no other action was there pending between the same parties, as if the kind of action were named. If two actions were pending in the same court, between the same parties, something' more might be necessary to designate the one in which the deposition was intended to be used; and if the two actions so pending were of the same kind, something more still might be requisite to point out to the adverse party the “ cause” in which it might .be intended to be used. In this case it is not pretended that the plaintiff had any other cause pending against the defendant ; and the naming of the parties, and the court in which it was pending, dearly enough indicated to the defendant the ■“ cause” in which it was to be used.

The next ground of exception is in reference to the proof of property in the plaintiff. There can be no doubt, if Elizabeth Scott, the mother of the plaintiff, owned the sheep in question, or was invested with power by the last will of her deceased husband, Jonathan Scott, to make sale of them, that, by her bill of sale to the plaintiff, she became the owner of ■them.

Jonathan Scott bequeathed all his property, real and personal, in the town of Minot, and the income of the same, to his widow, to be used and disposed of by her, for her con■venience and comfort, during life. The words “ use and dispose of” are supposed, in the argument for the defendant, to ¡refer to the income only, and not to the estate, either real or personal. But it is difficult to perceive, if such were the case, why the words “ during her life” should not immediately have ■succeeded the word ‘ Minot.’ That would have given her all •that, upon the supposed construction, she could have had. .Again, — it cannot be doubted, that the testator intended she should have, not only the income of the estate in Minot, but ■•dlso the actual occupation, and of course the use, of it. It could not have been expected by him, that the identical sheep left by him could exist many years. The income of them would consist of the increase, in a great measure, while the original stock, according to the course in such cases, would be perishing. After the lapse of over twenty years, which transpired after the death of the testator, and before the bill of sale to the plaintiff, none of the original stock could have remained. Again, — the words “estate” and “income” are coupled together; and the words “ to be used and disposed of,” following in elose connection, in grammatical construction refer as much to estate as to income. Again, — the estate in Minot, that may remain after the decease of his widow, he willed should be distributed. If he had not contemplated that she should dispose of it, as occasion might require, would he have so expressed his intention ? On the whole we cannot consider the construction contended for as well founded. If the widow received any sheep under the will, which does not seem to be clearly proved; and if the increase of them would not actually belong to her as part of the income, we cannot doubt that It must have been the intention of the testator to allow her to dispose of them whenever her comfort and convenience might require that she should do so.

There is, as was argued at the bar, much similitude between this case and that of Harris v. Knap, 21 Pick. 416. In that case the bequest was to the daughter “ for her use and disposal during her life;” and what should remain to others. The Court held that she had power to dispose of the estate ; and thereby to lessen the residuum. The language of the testator in the case here was at least as cogent, giving the power of disposal, as in that. Here the bequest was of the estate and Income to be disposed of for her comfort and convenience during lifeand the jury, under the instruction received from the Court, have found that it was necessary for her comfort and convenience that she should sell the sheep, as she did, to the plaintiff, And thus under any aspect of the case, whether the sheep were the widow’s as being the increase of, and therefore, the income of sheep derived from the estate, of the testator; or were her own, independent of any connection with any such bequest; or to be considered as part of the estate bequeathed, the sale by her to the plaintiff makes the proof of property in her complete.

The next question is, was there a conversion by the defendant? As to this the Judge directed the jury, if they believed the testimony of the witness, Noyes, the demand of the sheep, before action brought, was sufficiently specific; and we concur in that opinion. The defendant could not have misunderstood the object of the plaintiff; and his conversation with her shows he did not misunderstand it. The Judge instructed the jury further, that, if they “ were satisfied that the defendant was aware of the wrong of Scott (the witness,) and undertook to aid him to secrete the sheep, and keep them from the true owner; or if they were satisfied, that the defendant had been indemnified before the suit was commenced for withholding the sheep from the true owner, and preventing her from enjoying her property; or that he confederated with Samuel Pool and Benjamin Scott for that purpose, and that he did withhold the sheep, then they should find the fact of conversion by the defendant.” Here were three hypotheses. If establishing either of them would not amount to a conversion, the exceptions must prevail; for the jury may have found the insufficient one to be true. But we think each of them would amount to a conversion. It is immaterial, therefore, which, if either of them, was established. The principal question made in argument by the defendant’s counsel is, did the Judge do right in supposing, that the evidence was such as to authorize the jury to consider and to find affirmatively in reference to them. If there was evidence which might fairly tend to establish those facts, the Judge could not well refuse to put the cause to them for their consideration as to its effect, though in his judgment it might not have been entirely sufficient for the purpose.

Now, was there evidence of that character ? According to the testimony of Noyes, the defendant claimed to have made an absolute purchase of the sheep of Benjamin Scott; and admitted that he at first objected to the purchase, because he knew there was difficulty between Benjamin and the plaintiff, his sister, “about the property on the old farm.” But on being assured by Benjamin, that he had a perfect right to sell them, he bought them of him, and gave his note for the price. George Ellis, -who seems to have been present, testified that the defendant bought the sheep of Benjamin, who assured the defendant that he had a right to sell them as administrator of his father’s estate, the defendant at first having expressed some fears that there would be trouble about it. Here was evidence, to some extent at least, tending to show that the defendant was not unapprised, that there was a controversy between the plaintiff and her brother about the property. At the trial, the defendant introduced Benjamin as a witness, who swore that he did not consider himself as having sold the sheep to the defendant, but that he merely left them with him, and took a memorandum, which he produced, in the following words: ■— “ Received of Benjamin Scott ten sheep at $16,50,” the language of which is sufficiently inexplicit and equivocal, perhaps, to be used as evidence of a sale or not, as might suit the convenience of the parties. And Benjamin testifies, that several weeks after he had so left the sheep, on receiving a message from the defendant that they had been demanded of him by the plaintiff, he took them from him. And Benjamin further testified, that Samuel Pool had agreed to indemnify the defendant for the damages and costs in this suit, and that it was understood between him and Pool that he (Benjamin) was to indemnify Pool.

Thus, the conduct of the defendant, at the time of the demand made by the plaintiff; the evidence derived from his declarations at that time of an absolute sale to him; his proof, by Benjamin, that there was no intended sale; the equivocal writing given by him to Benjamin; his indemnity procured by Benjamin from Pool; his acknowledgment, that he knew there was difficulty between Benjamin and the plaintiff concerning the property on the old place; his fears, showing that he knew the sheep came from there; all these circumstances taken together, might w'ell be regarded by the Judge as tending to show collusion between the defendant and others to baffle the endeavors of the plaintiff in attempting to regain her property.

The jury therefore may be regarded as having found property in the plaintiff, and a conversion of it by the defendant, upon evidence legitimately submitted to them for the purpose ; and the exceptions are overruled.