Ransom v. Wetmore , 1862 N.Y. App. Div. LEXIS 209 ( 1862 )

By the Court,

Miller, J.

I think the justice erred in denying the motion for a nonsuit. The action sounded in tort, and was for the wrongful taking and conversion of the plaintiffs’ sheep by the defendant.' It appeared upon the trial, from the uncontradicted evidence in the case, that the defendant, claiming to have lost some of his sheep, called upon the plaintiffs and with their assent examined their flock for the purpose of ascertaining whether the defendant's sheep were among them. The defendant, with the consent and permission of the plaintiffs, took the sheep which he supposed to be his. He promised to make it right if they turned out not to be his sheep, and the plaintiffs told him if their sheep fell short he must make it right. Neither party appeared to he very confident as to the ownership of some, of the sheep, and they were taken and surrendered under the impression of both that they belonged to the defendant. One of the plaintiffs afterwards called upon the defendant to pay for the sheep, which the plaintiffs afterwards claimed belonged to them. So far then as the original taking is concerned, there is an entire failure to show that it was wrongful or tortious. Nor do I think that there was any evidence that there was fraud and deception practiced by the defendant in obtaining the sheep. I have examined the testimony bearing on this point with some care, and it appears to me that it is too remote and uncertain to establish any such hypothesis. It does not show or tend to show that the defendant knew at the time he received the sheep .that they were not his, and that he took them with knowledge that they were not. There is no evidence of a fraudulent intent on his part. The plain- • tiffs at the close of the case waived the tort and abandoned all claim to recover on that ground, and thus conceded that there was no fraud. As the case stood, the justice should have nonsuited the plaintiffs, and the action could not be maintained, within the principle laid down in several adjudicated cases. (Walter v. Bennett, 16 N. Y. Rep. 250. The Mayor &c. v. The Parker Vein Steam Ship Co., 21 How. Pr. Rep. 289. Texier v. Gouin, 5 Duer, 389.)

' It is insisted, however, by the plaintiffs, that the plaintiffs having, after the testimony was closed, asked leave to amend and change the form of the action to one of assumpsit, and the defendant having objected to it and the justice sustained the objection, the defendant was not prejudiced, and he thereby waived all advantage he was entitled to by reason of his motion for a nonsuit and the refusal of the justice to grant it. It is perhaps questionable whether the justice erred in refusing to allow the amendment proposed. (See 16 N. Y. Rep. 250, and 5 Duer, 389, before cited.) But whether he did commit an error or not is not a subject of review in this case. The proposed amendment would have entirely changed the form and nature of the action from tort to assumpsit. -It was asked after the whole case was finished, and the defendant had been compelled to litigate an entirely different cause of action. Had it been asked when the motion for a nonsuit was made, upon the ground of variance, it would have materially altered the case, and the defendant could have been prepared to some extent to meet this entire change of the plaintiffs’ claim. Even if the variance was of such a nature as to be amendable, I know of no rule of law which would compel the defendant in that stage of the case to assent to this important and material change, or by failing to do so to waive his rights already acquired by his motion for a nonsuit. The effect of the amendment would be to compel the defendant to try the whole case over again, and I think his refusal to assent to it cannot be regarded as in any way affecting the question presented on the motion for a nonsuit.

[Albany General Term, December 1, 1862.

Hogeboom, Pechham and Miller, Justices.]

The conclusion to which I have arrived upon the points already discussed renders it unnecessary to examine the other question raised by the defendant.

The judgment of the county court should be affirmed with costs.