Gallup v. Josselyn , 7 Vt. 334 ( 1835 )

The opinion of the court was delivered by

Williams, Ch. J.

This is an action of trespass, for a quantity of boards and timber, taken as the property of Dan Shipley. It appears that a contract was made between Shipley and plaintiff, upon the construction of which depends the rights of the parties to this suit. In the first place, Shipley was to build a barn at all events, by a time therein limited. Gallup was to find timber. There was no sale to him — no transfer of property ; and he had ho right to use timber for any other purpose. If he thought proper to procure it elsewhere, no right is given him to take an equivalent from Gallup’s land, or in short, for any other purpose than building the barn; for such are the express words of the contract. It may be very questionable whether, if Gallup had sold the land whereon the timber grew, it would not have so far rescinded the contract, as that Shipley would have been under no obligation to fulfil. At all events, Gallup would have been liable for all damages, and if Shipley had procured the timber elsewhere, Gallup would have been under ob-' ligation to pay for the same. If the timber, either before or after it was sawed, had been burnt up, without fault as was supposed in argument, it would have been so far Gallup’s loss, as that Shipley might for the same purpose had procured more from the same lot.

Such being our views of the nature of the contract, it follows that the timber, when cut from the stump, was the property of Gallup. It could not thereafter become the property of Shipley, by the labor bestowed on it, in manufacturing it for the use intended. So long as it could be traced and identified, it still remained his.— For at no period previous to the taking, do we find any act of the plaintiff manifesting his intention to part with the property. The case from Johnson, of the owner of timber being allowed to recover for the property when manufactured into shingles, is a very strong case to show that the owner is not divested of his ownership by any alterations the property may undergo, so long as it can be identified. It is true, in that case, the property, i. e. trees, from which' shingles were manufactured, was taken without the consent of the' owner. But I apprehend the principle on wich the decision was founded, is applicable to this case. If the owner of timber-trees is' permitted to retain his ownership when it is thus manufactured into boards or shingles, when it is taken for that purpose, without his' consent, it is difficult to see why he should be divested of his owii-ership, when taken with his consent, to be manufactured for his use. Upon the construction of this contract, and from the nature of the case, we are of opinion, that the property of the boards and timber, for the taking of which this action is brought, was in the plaintiff.

The next question is, whether he had such a possession 'as to enable him to bring this action. The general principle is, that the ownership of personal property carries with it possession. The owner is constructively in possession. Where he parts \yith pos» session and use for a definite time, he cannot maintain trespass against any one who takes it during that time. Such was the doctrine laid down in the cases cited. Here was no parting with possession : the property all the while remained is the plaintiff The possession of Shipley was that of an agent to manufacture for the plaintiff’s use ; and he had no other possession than he had of the team for drawing the same : Nothing more than every hired man or agent has, of property entrusted to him, to use in the business of, and for the benefit of the owner. If Shipley had converted it to any other use, he would have been immediately liable ;• and if any one took it fronr Shipley, while in the employ of the plaintiff in-completing the job, such person would be immediately answerable to th.e plaintiff; and it would be a direct injury to the property of the plaintiff, in the hands of his agent, and of course air injury to the possession, for which the action of trespass is the appropriate remedy. The evidence introduced,-directly tended to prove the plaintiff’s cause of action-, and the defendant was not entitled to the charge requested.-

Judgment of county court is therefore aflrrniqd.