Vincent v. Conklin ( 1851 )

By the Court. Ingraham, First J.

This action is for detaining flour which the defendant had ground out of rye for one Roe. The rye was the property of the plaintiffs, which they had agreed to sell to Roe, to be delivered in New York, and paid for on delivery. Afterwards it was agreed that the flour should be ground at Poughkeepsie, by the defendant. The plaintiffs still were to deliver the flour at New York, at an increased price.

Before this suit, Roe gave up his contract, and the plaintiffs agreed to take the flour made by the defendant on their own account, they to pay the same charges as Roe would be liable for, and this change was known to the defendant.

In July, 1847, the defendant sent 103 barrels to New York to be sold. This flour was replevied in this suit by the plaintiffs, except 14 barrels, which had been sold. Upon the trial of the cause a deposition of Roe was read in evidence and objected to by the defendant, upon the ground that the pleadings had been amended subsequently to the taking of the deposition—which objection was overruled, and we think properly— although the issue was technically altered, still the true issue between the parties remained the same, and this was known to the parties just as well before as after the amendment.

If either party wished further to examine the witness, a motion should have been made for a further commission, and if not, and the testimony was inapplicable to the new issue, a motion to suppress the deposition would have been proper ; but we are not prepared to hold that a mere technical amendment of proceedings renders void all previous depositions which may have been taken in a cause.

The objection taken to the inquiry in regard to Roe’s indebtedness during the season to the defendant was well taken, and the question properly excluded, because it was not solely applicable to the property in controversy. It related to business which had been done both at Newburgh and Poughkeepsie, and the answer to it would not have given any information as to what claims the defendant had upon this rye.

Besides, this fact was afterwards proved by another witness, who testified to the amount of the bill as rendered by the defendant, and the defendant could have sustained no injury by the exclusion. On a case this would be immaterial. Still another witness also testified to the same effect.

The motion for a nonsuit was properly denied. The grounds of nonsuit are all included in the exceptions to the judge’s charge, and are noticed in reference to those exceptions. The judge charged that if the flour was, by the agreement with Roe and the plaintiffs and with defendant, to be returned to the plaintiffs, to be delivered by them in New York, according to the original contract, it remained the plaintiffs’ property, &c. There can be no doubt of the propriety of that charge, under the well known rule, that if any thing remains to be done to the goods before delivery ; no title passes. Here the flour was to be carried, by the vendors, to New York, before delivery.

The second exception to the judge’s charge involves the same points, with the additional remark made by the judge, that if so, Roe could neither sell nor pledge it without the plaintiffs’ consent. He doubtless had the right to make it liable to the defendant’s claim for grinding, because it was a part of the second agreement between plaintiffs and Roe; but this was done with the plaintiffs’ consent, and further than that he had no authority to pledge it. He had no right to sell it, because he had acquired no title, and was not to have any until after delivery, when it was to be paid for. The judge further charged, that the defendant was bound to deliver the flour to plaintiffs at their landing and until he did so, he was not entitled to pay for milling.

It was part of the contract with defendant to deliver the flour to the plaintiffs, and this duty was a portion of the labor for which the defendant was to be paid. It is idle to say that the defendant had a right to be paid before he had performed the work entitling him to payment. He had an undoubted right to notify the plaintiffs that he should insist upon his pay before parting with the possession of the property, but this right to hold for his lien did not excuse him from the obligation to deliver. It was at the place of delivery that the defendant had a right to insist upon his lien. There was no error in this part of the charge.

The other portions objected to-by the defendant are so connected with the points previously noticed, that it is difficult to separate them. If the property still remained in the plaintiffs, in consequence of the obligation on him to deliver the flour in New York, and he had only given Roe the privilege of having it ground at Poughkeepsie, Roe had no authority to dispose of it in any other way than was agreed on between the parties. The extent of his authority was to have the grain converted into flour, and then to be returned to the plaintiffs. This gave him no authority to sell or otherwise dispose of it. The testimony will not warrant the ground taken by the defendant’s counsel, that there had been a complete sale and delivery to Roe, to vest the title in him and that only the time of payment was postponed by the required delivery in New York. The express condition .of sale was payment on the delivery, and there is nothing in the whole case which shows that the plaintiffs at any time consented to abandon this part of the contract. There is no difficulty in understanding the term used by Roe of a re-sale, where the property has never been delivered. It is an abandonment of the contract, or an agreement to take the property remaining undelivered, and the plaintiffs to assume the expenses chargeable upon the property. It gave Roe no right to sell the plaintiffs’ property before he had paid for it himself, according to the agreement.

The remaining point is, that- the judge erred in charging that if the defendant had a lien he was bound, to observe good faith, and had no right, in virtue of his lien, to make any other disposition of the flour, by selling or otherwise, without notice to the owners, and without a tender and demand of pay for milling. That the moment he shipped the property to New York for sale, it was a misappropriation of the subject of the lien, which destroyed the lien.

This is objected to, upon the ground that the defendant had authority from Roe to sell. It has already been held that Roe had no such authority, and, therefore, could give no such power to the defendant, and consequently the ground of the objection ceases. There can be no doubt that a misuse of the property pledged, or which is subject to a lien, by attempting to sell it, before it has become forfeited for non-payment of the lien, is of itself a conversion, and destroys the lien.

Such an act also renders a demand unnecessary. Part of the flour had been sold already, and the plaintiffs, if they were the owners, were not called upon, after such an act, to demand the property from the defendant before taking measures to save it. There is no error in this charge, of which the defendant can complain.

How far Roe was impeached by the other witnesses was a question for the jury. They have decided in his favor, and we see no reason to interfere with such decision. Giving him credit, the verdict of the jury is strictly in accordance with his testimony and cannot be said to be against the weight of evidence.

We see no cause to set aside the verdict in this case.

New trial denied.