Redington v. Chase , 44 N.H. 36 ( 1860 )

Bartlett, J.

The plaintiffs owned an undivided third part of the shot iron. The whole was taken by tbfe defendants, who had purchased the other two thirds, and by .them mixed with other iron, and manufactured into various kinds of wares, so that the shot iron could no longer be traced or identified; and these wares were sold or disposed of by the defendants. We think these acts of the defendants placed the common property as completely beyond the plaintiffs’ reach, as the destruction of it would. The case differs from Fennings v. Grenville, 1 Taunt. 241, where the extraction of the oil from the whale was in fact a ¡(reservation of the common property. There the chattel was turned to its common and profitable use — to the only use ultimately intended or valuable — and although the form was altered, the change would not prevent the other tenant from taking and using it, and without this change the common property must have been lost. But here was a conversion of the entire property to the defendants’ use, made under circumstances from which no authority could be implied, and of such a nature that the plaintiffs could not afterward take or use the property.

It would, therefore, be unnecessary to inquire whether a sale of the entire property by one tenant in common is a conversion, if that were an open question in this State. White v. Brooks, 43 N. H. 402.

We are of opinion that there was a conversion of the plaintiffs’ share of the iron, and there must be judgment for the plaintiffs on the report.