White v. Brooks , 43 N.H. 402 ( 1861 )

Sargent, J.

The transactions in this case, taken in the order of time in which they occurred, were as follows: October 1, 1856, Taylor made his contract with the defendants to sell to them all the shingles he had made or should make that fall or the coming winter, to be delivered at the intersection of the roads.

December 16,1856, White and Taylor made their contract for the manufacture of shingles, as stated in the case. The shingles were made by Taylor from timber of White’s ; and Taylor delivered not only White’s part, but his own, at the intersection of the roads.

The defendants had drawn the larger part of these shingles away before February 6, 1857. About that time White first learned that the defendants were taking these shingles away; whereupon he went immediately to Dalton, and notified the defendants of his ownership in the shingles, and claimed pay for his share-in them, and forbade their taking away any of the fifty thousand that remained, unless they paid him for them.

Afterward the defendants made certain arrangements with Taylor, to which the plaintiff was no party, nor did it appear that he had any knowledge of them; whereupon the defendants, prior to February 7, 1857, hauled all of the balance of the shingles away from the intersection of the roads ; after which the plaintiff called at the defendants’ store, and took up a bill of goods, February 25, another, May 15, and the third, July B, 1857, according to the credits given in the plaintiff’s account.

On the 26th of September, 1857, Taylor gave to the plaintiff’ the order on the defendants, certifying that White was entitled to receive of them pay for the same amount claimed in this suit, which they had received of Taylor, which order White presented to the defendants, &c. And on the thirtieth clay of the same September the defendants sued Taylor for their whole claim, and secured their debt by an attachment of his property. He filed in set-off the whole amount of the shingles. White was notified of Taylor’s claim, and was ready to appear and sustain his claim ; but the defendants settled with Taylor privately, without letting White know of it; and of course, after having been notified by "White and Taylor both, of White’s- claim, if they chose to settle without White's knowledge, and allow all of Taylor’s claim, White would not be prejudiced by it.

It appeared that the defendants had sold all these shingles to one Holmes, of Littleton, and received payment in full for them in cash. And the evidence tended to show that White never gave any authority to Taylor, or any body else, to sell his part of the shingles.

We do not here discover any fraud, or any such laches on the part of White, in asserting his claim, as estops him from making it here.

The question was submitted to the jury to find whether the plaintiff had in any way surrendered his power of control over the shingles, or had authorized Taylor, or any body else, to dispose of his part of them; and the jury, by their verdict, have negatived any such position. And the evidence tends to show certainly that he lost no time, after he received notice of the defendants taking his property, in notifying them and making his claim ; and no question is made but that the jury have assessed the damages at the proper amount, if the plaintiff is entitled to recover at all. The jury have also found by their verdict, under the instructions given, that the plaintiff's property had been converted into money by these defendants, and that a proper demand was made on them for the same, before suit brought.

This leaves but two questions open for investigation: (1) Was the plaintiff a tenant in common in the ownership of the shingles when taken by the defendants, or had he only a claim on Taylor for a certain quantity of shingles, to be delivered at the place specified, which he can only enforce as against him ? (2) If White was a tenant in common in the ownership of the shingles, can he maintain this suit upon the facts which the jury have found ?

The first question depends upon the interpretation of the written contract between White and Taylor. This provides that, of the shingles made from White’s lumber, Taylor shall have seven tenths for the making. That would, of course, leave the remaining three tenths belonging to White, wherever they might be. But the contract goes further, and provides that Taylor shall deliver the part which thus belongs to White, at a certain place. Taylor is at liberty to do what he pleases with his own seven tenths. Now this is not a sale of the timber by White to Taylor, and an agreement to pay for the same in shingles, delivered at a certain place; but the agreement is that Taylor shall have a certain share for the expense and labor of manufacturing, and that leaves the balance White’s, who found the timber.

Had Taylor failed to deliver these shingles at the place agreed on, but left them in the woods where they were made, he would have been liable on that contract, not for the value or amount of the shingles at that place, but merely for the damage caused by his not drawing them to the place agreed on. Three tenths of these shingles being White’s wherever they were, if Taylor sold them he simply undertook to sell White’s property, although in common with his own. Taylor drew all the shingles to this place, as it seems, from choice, as this was the place where the defendants were to fake them of him. Taylor having thus performed his contract, in manufacturing and hauling the shingles, White and Taylor were then owners in common of those shingles at the crossing of the roads, when the defendants took them. And the ruling of the court was correct upon that point, as it was also upon the other, that Taylor could not convey any greater interest than he owned ; that he could not sell White’s interest in them without his consent.

Can White, thus situated, maintain this suit ?

In the case of a personal chattel, or of trees severed from the land, if one of two or more joint tenants or tenants in common by the sale thereof convert the same into money, the joint interest is determined, and .each hath a separate interest for a sum certain, and may support an action for money had and received against the’ other. 1 Chit. Pl. 39 and 40. Here, then, if Taylor sold or undei’took to sell the whole interest in the shingles to the defendants, that terminated the tenancy in common, and White could have brought indebitatus assumpsit against Taylor for his portion -of the money; and the tenancy in common being terminated, White might also have followed his property into the hands of the defendants, and have maintained trover against them for the conversion of his property. But the defendants having sold the property and converted it into money, he may waive the tort and bring assumpsit for money had and received, to recover whatever the defendants have received upon a sale of the plaintiffs property, the plaintiff ratifying the sale and only asking the defendants to pay him the amount of money they have actually received for his property which they sold.

On the other hand, if Taylor only sold his interest in the shingles to the defendants, then they would have become tenants m common with the plaintiff, in the ownership of the property; and then selling the whole of the property in the shingles to Holmes, and receiving the money for them, would operate as a termination of the tenancy in common between them and White, and White could maintain his action of tort against them for such conversion of the property, or assumpsit for his portion of the money in their hands, hands, which arose from the sale of his property.

So it makes no difference here whether Taylor sold the whole property in the shingles to the defendants, or only his interest therein ; there has been a termination of the tenancy in common, and a conversion of the property in either case, and a sale of the same for cash, so that the plaintiff can maintain assumpsit.

One whose goods have been taken from him, or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrong-doer sell the goods and receive the money, waive the tort, affirm the sale, and have an action for money had and received for the proceeds. Jones v. Hoar, 5 Pick. 285, and cases cited in note; Gardiner Manf. Co. v. Heald, 5 Greenl. 381; Chauncey v. Yeaton, 1 N. H. 151; Main v. Locke, 11 N. H. 246; Gilmore v. Wilbur, 12 Pick. 120. The last ease is cited by the defendants as an authority on which they rely, because it is there said that tenants in common must not only join in an action of tort for an injury to the common property, but that they must also join in an action of assumpsit where the tort is waived.

Now, there is no doubt about the correctness of this principle; the only trouble is in making it apply to the defendants’ case. Suppose these defendants had taken all these shingles without purchasing them of either of the owners, and without their consent; then these owners in common must join in an action of trespass; they would also join in an action of trover for the conversion of the common property; and if the defendants, having obtained the property in that way, had sold the same, and converted it into money, the joint owners might waive the tort, and bring an action of money had and received, for the money thus received for their property, and in that action they must join. This is the doctrine of Gilmore v. Wilbur.

But that it has no application to this case is apparent from the fact that in this case there was first a severance of the tenancy in common, a termination of the common ownership, by the wrongful act of one of the tenants, in undertaking to sell, not only his own interest in the common property, but the whole property, without any authority to do so, from the joint owner. The tenancy in common being first terminated, by the act of the other owner in common, White has a sole action against the defendants, as though no tenancy, in common had ever existed. Selden v. Hickock, 2 Caines 166; Weld v. Oliver, 21 Pick. 559.

The last case is in point here: It is there held that if personal property held in common be sold by one of the tenants, as exclusively his own, such sale is a conversion, and the co-tenant may maintain trover therefor against him, or he may, in case the purchaser shall also sell and deliver the property as his own, maintain trover against such purchaser for the subsequent conversion. Now if he could bring trover against either, under these circumstances, he could of course waive the tort and bring assumpsit for the money received, either against his former joint owner, or such subsequent purchaser; 3 Bouv. Institutes 672, sec. 35, 24; Wilson v. Reed, 3 Johns. 175; Hyde v. Stove, 9 Cow. 230; Gilbert v. Dickinson, 7 Wend. 449. Also, as bearing on the case, see Lamine v. Dorrel, 2 Ld. Raym. 1216; Lindon v. Hooper, Cow. 419; Lightly v. Clouston, 1 Taunt. 112; Carr v. Dodge, 40 N. H. 403.

But there is another reason why this position of the defendants can not avail them, that the action should have been in the name of "White and Taylor, and that is, that such nonjoinder of plaintiffs could only be taken advantage of by plea in abatement. In this case it is too late to take that exception on trial. Pitkin v. Roby, 43 N. H. 138.

There must be judgment on the verdict.