Taylor v. Jones , 42 N.H. 25 ( 1860 )

Fowler, J,

When the plaintiff’s goods were attached by the officer, by direction of the defendant’s partner, Tibbets, they were not only intermingled with those of the debtor, Rand, but actually marked with his name, so that, in the absence of the plaintiff, and without his identifying and pointing them out, it would seem to have been utterly impossible for the officer or Tibbets to have distinguished them from those of Rand. If this were so, both the officer and Tibbets were justified in attaching and holding the goods as Rand’s, until the plaintiff claimed and identified, or offered to identify and point them out, and separate them from those of Rand. Walcott v. Heath, 22 N. H. 196, and authorities on page 211; Robinson v. Holt, 39 N. H. 557, and authorities on pages 563 and 564; Wilson v. Lane, 33 N. H. 466; Bond v. Ward, 7 Mass. 127; Shumway v. Rutter, 18 Pick. 443; Lewis v. Whittemore, 5 N. H. 366.

Whether the plaintiff’s goods were thus intermingled, and by his own fault or negligence, if doubtful upon the evidence, was a question for the jury. It may have been wholly immaterial, upon this point, whether there were any improper agreement or fraudulent contrivance between the plaintiff and Rand, in consequence of which the plaintiff’s goods had become intermingled with those of Rand. It would seem to have been clearly the duty of the plaintiff' to see to it that his own goods were properly marked and kept separate from all others; and, if he neglected this duty, and gave no instructions to any other person to attend to it for him, but left the marking and forwarding to Rand, he must be held responsible for his negligence, and his goods must be regarded as having been intermingled with those of Rand through his own fault or neglect. If the plaintiff and Rand conveyed their goods to the depot together, wholly undistinguished from each other, and the plaintiff left them thus intermingled in the control of Rand, and by Rand’s assent the station-agent marked the whole with his name, it would seem to have been clearly through the fault or neglect of the plaintiff’ that his goods were thus marked. If, by himself intermingling his goods with those of Rand, and leaving them thus undistinguished, the plaintiff permitted the station-agent to understand and act upon the understanding that the whole belonged to Rand, or might properly be marked in Rand’s name, by his neglect and omission of duty, he would be justly held responsible for the consequences of that action, so far as innocent third persons were concerned, whether he were guilty of any fraud in allowing his goods to be thus marked or not. Beside, the case finds that after the plaintiff and Rand had started off together in the passenger train, the plaintiff was informed of wffiat had been done, and the way-bill or receipt for all the goods, as belonging to Rand, or as marked in his name, was exhibited to him ; but it does not find that he made any objection to the arrangement, or took any steps to avoid the consequences of it, so that he might well be taken to have assented to it; and his goods might, in law, therefore, well have been regarded, as the jury could hardly have failed to find them, in fact, to have become intermingled with those of Rand, at the time of the attachment, by the silent, if not direct assent, and manifestly by the palpable negligence of the plaintiff himself.

If the plaintiff’s goods were intermingled with those of Rand through his own fault, he had neither the possession, or right of possession, of the goods as against a creditor or an officer having process against Rand, and attaching the whole intermixture as the property of Rand, and, therefore, could not maintain trespass for taking them. This was a defect in the plaintiff’s title, which his own evidence disclosed, but which the defendant might have, shown under the general issue, had that question arisen upon the trial, as it does not appear to have done. Fuller v. Rounceville, 29 N. H. 554.

The instructions for which the defendant asked upon this subject were sufficiently favorable to the plaintiff, and those given by the court calculated to mislead the jury, to the serious prejudice of the defendant.

If the jury, under proper instructions, had found that the original attachment of the plaintiff’s goods, by the direction of Tibbets, was rightful and justifiable-; if it did not follow as a conclusion of law from the facts proved, it would have remained for them to determine, under like instructions, whether the neglect or refusal to surrender the goods on demand made therefor, and an offer to point them out, and their subsequent sale under the process, could make the defendant a trespasser ab initio, and responsible for the original taking as wrongful. Had it been clear upon the evidence, as it was not, that the defendant was the party to whom Kendrick applied to surrender the goods, and offered to point them out, it would still have been a question whether he had so conducted as to be liable in trespass.

In order to make one who has acted with propriety under legal process liable, ab initio, for subsequent illegal acts, it must be shown that he has abused the authority under which he acted. Gordon v. Clifford, 28 N. H. 412. An intention afterward to abuse the authority will not do it. French v. Marston, 24 N. H. 450.

What constitutes an abuse of authority is well settled. Mere nonfeasance does not amount to it. The Six Carpenters’ Case, 8 Coke 290; Gardner v. Campbell, 15 Johns. 402, where it was held that a person, taking the goods of another under lawful authority, does not become a trespasser, ab initio, by refusing to restore them after his authority is determined. To the same point are Dunham v. Wyckoff, 3 Wend. 280; Hall v. Tuttle, 2 Wend. 475; Marshall v. Davis, 1 Wend. 109; Judd v. Fox, 9 Cow. 259; Clarke v. Skinner, 20 Johns. 465; Mills v. Martin, 19 Johns. 32; Morris v. Dewit, 5 Wend. 71; Gates v. Lownsbury, 20 Johns. 427.

Such an error or mistake as a person of ordinary carej and common intelligence might commit, will not amount;1 to an abuse; but there must be such a complete departure! from the line of duty, or such an improper and illegal ex- f ercise of the authority to the prejudice of another — such ;i an active and willful wrong perpetrated — as will warrant j the conclusion that its perpetrator intended from the first !■ to do wrong, and to use his legal authority as a cover for his illegal conduct. Where the acts proved warrant no t such conclusion, the person charged with them is not a trespasser. Barrett v. White, 3 N. H. 210, and authorities cited by Chamberlain arguendo, and in the dissenting opinion of Green, Justice; State v. Moore, 12 N. H. 42; Ferrin v. Symonds, 11 N. H. 363.

In the case before us, had it been clear that the defendant was the party neglecting or refusing to surrender the plaintiff’s goods at the demand of Kendrick, the jury might well have found that there was subsequently no such departure from the line of duty, no such improper and illegal exercise of the authority of the process, no such active and willful wrong committed, as would justify the inference that he intended to do wrong from the first, and to use the process as a cover for the outrage. Even taking Kendrick’s account of his interview with the defendant, it does not necessarily show that, in refusing to surrender the goods, he might not be acting under such an error or mistake as a person of ordinary care and common intelligence might commit. Kendrick testified that the defendant said they had attached the goods as Rand’s property, on a debt against him; that they could hold them, and would not give them up; that Rand was an absconding debtor; that an affidavit had been made and bonds given as required by law in such case, and that if the goods were replevied they would replevy them back again. We can perceive nothing in this testimony, if it were all true, which shows conclusively that the defendant might not have been acting in perfect good faith, as to what he honestly believed to be his legal rights, in refusing to surrender the goods; and nothing to show that, having taken the goods with his debtor’s name marked upon them, he might not have been acting under such an error or mistake, in retaining and selling them, as a person of ordinary care and common prudence might readily and naturally fall into.

In Lewis v. Whittemore, 5 N. H. 366, it was expressly held that an officer had a right to attach the goods of another intermixed with those of the debtor, and hold them until they were identified by the owner and a redelivery demanded; that he could not be treated as a trespasser for doing what he had a right to do ; that if, after identification and demand for re-delivery, he refused to give up the goods and proceeded to sell them, it would be a conversion for which trover would lie, but that trespass could not be maintained for the original taking. See also Shumway v. Rutter, 8 Pick, 443; Bond v. Ward, 7 Mass. 127; Wilson v. Lane, 33 N. H. 466; Fuller v. Rounceville, 29 N. H. 544.

In our view, therefore, it might have been for the jury, in the present case, to say whether the defendant had been guilty of such an abuse as to be legally liable as a trespasser ab initio. If, as matter of law on the facts proved, ' or upon the finding of the jury, he had not been thus guilty, he could only have been liable, in ease or trover, for such sum in damages as would compensate the plain- ! tiff for the injury sustained by that portion of the acts of ¡the officer which was illegal and wrongful, while the-writ ’ would have been his protection for whatever was legally and properly done under it. Had the evidence disclosed a state of facts under which trespass might clearly have been maintained, whether it would have been a case where the rule in relation to vindictive damages would have applied, it is not now necessary to inquire.

The instructions to the jury, though substantially correct, might, in our judgment, have misled the jury in another respect. They were, in effect, that the defendant was answerable for the wrongful acts of his partner, Tibbets, whether he authorized or adopted them or not, inasmuch as those wrongful acts, being done to secure the payment of a debt due the firm, he would be chargeable as availing himself of the wrongful acts of his partner, to secure an advantage to himself; that in prosecuting their common purpose to procure an advantage from the plaintiff’s goods, any knowledge or notice that might lead to charge Tibbets, would so far bind the defendant, the law presuming the defendant to concur and aid in the wrongful acts of his partner.

One question raised by the evidence was, whether the defendant had himself been guilty of any wrong — whether he ever had any knowledge of the attachment, and assented to or adopted it — and whether he ever saw the plaintiff’s agent, Kendrick, or refused to release the goods attached upon demand made for them, and an offer to point them out. The effect of the charge was to render this question wholly immaterial, and to hold the defendant responsible for the wrongful conduct of Tibbets, whether it were authorized or adopted by him or not, and whether such wrongful conduct were within the proper scope and business of the partnership or not. Now we take it to be entirely clear that the only ground upon which one partner can be held responsible for the wrongful acts of another is that of agency — the wrongful acts being done under the express or implied authority of the non-participating partner. There is no legal presumption that one partner concurs in the wrongful acts of another. If, then, the jury had found from the evidence, as they manifestly might well have done, that Tibbets was the partner upon whom the plaintiff’s agent, Kendrick, made the demand, and to whom he offered to point out the goods, and who thereupon neglected or refused to give them up, if such neglect or refusal had been in law such a wrongful act as would have enabled the plaintiff to maintain his action for trespass or trover against Tibbets; still, as we understand the law, it is entirely clear that the defendant would not have been liable therefor as his partner in business merely, unless the jury had found that, in thus neglecting and refusing, Tibbets was acting within the proper scope and business of the partnership, or that the defendant had authorized or adopted his acts. Story on Partnership, secs. 166, 167, 168, and authorities; Story on Agency, secs. 465, 456, authorities and notes.

The only remaining question relates to the correctness of the ruling of the court below, in permitting the plaintiff to increase the ad damnum of his writ from $300 to $500, after verdict, in order to cover that verdict, against the defendant’s objection. This is a matter of practice, and from the best examination we have been able to give the subject, we are of opinion that the amendment was improperly allowed.

Prom a careful comparison of the various authorities, we are satisfied that the reasonable rule, in relation to amendments after verdict, and one which reconciles most, if not all of the numerous decisions, would be, that where the verdict is for a sum larger than the ad damnum, the difficulty may always be remedied by entering a remittitur for the excess; that the ad damnum may be amended after verdict, when it is apparent from the declaration itself that it was left blank, or too small a sum inserted, through mistake or inadvertence only; that if there has been a full and fair trial on the merits appearing on the face of the declaration, without any knowledge by either party of the defect, judgment maybe rendered without a new trial; but that, if it does not appear that the defendant had no knowledge of the defect, the amendment may be made, but a new trial must be granted, to give him an opportunity to contest the enlarged demand; that, in actions sounding in damages only, where the plaintiff deliberately estimates the injury to himself, and there is only a difference in judgment between the jury and himself, as to the nature, extent and aggravation of the injury, no amendment increasing the ad damnum to cover the verdict will be allowed, and the only remedy for an excessive verdict is a remittitur ; yet, that the court, in their discretion, may allow the ad damnum to be increased, in any case, where, after a full and -fair trial upon the merits, the defendant claims and insists upon an appeal or review. Howe’s Pr. 305; Hoit v. Molony, 2 N. H. 322; Dawkes v. Pilfield, Cro. Jac. 297; Pilford’s Case, 10 Coke 115; Chewly v. Morris, 2 W. Bl. 1300; Curtiss v. Lawrence, 17 Johns. 111; Tidd’s Pr. 653; Tomlinson v. Blacksmith, 7 D. & E. 132; Pearse v. Cameron, 1 M. & Sel. 675; Bogart v. McDonald, 2 Johns. Cases 219; Scutt v. Woodward, 1 H. Bl. 238; Wilder v. Hendy, 2 Str. 1151; Marshall v. Riggs, 2 Str. 1162; Livingston v. Rogers, 1 Caines 584, 588; Usher v. Dansey, 4 M. & S. 94; Perseval v. Spenser, Yelv. 45; McLellan v. Crofton, 6 Greenl. 307; Hutchinson v. Crosser, 10 Mass. 251; Whittier v. Varney, 10 N. H. 291; Green v. Bennet, 1 D. & E. 782; Danielson v. Andrews, 1 Pick. 156.

With these views, the verdict must be set aside, and

A new trial granted.