Alderson v. Schulze , 64 Wis. 460 ( 1885 )

The following opinion was filed September 22, 1885 :

Oetoh, J.

The complaint substantially alleges that the parties were joint owners of a steamboat; the appellant owning one third, and the respondent two thirds, thereof. The respondent offered to purchase of the appellant his one-third interest for $100, and the appellant accepted the proposition, and the respondent replied that he would let the appellant know the nest morning. The respondent the same night secretly and fraudulently ran the steamboat off and away into the waters of another state, and there so un-skilfully, negligently, and improvidently managed it as to sink, greatly injure, and damage it, and incurred great expense about raising and repairing it, and carelessly and negligently ran it in debt, and created liens thereon, amounting in all to a sum greater than its value, and made the appellant’s interest therein wholly valueless to him, and deprived him of his interest therein, to his damage of $700. On the trial the respondent objected to any evidence, on the ground that the complaint failed to state a cause of action., and tbe objection was sustained, and judgment wak rendered dismissing tbe complaint, and for costs.

Tbe learned counsel of tbe appellant contends in bis brief tbat tbe complaint states three causes of action: contract, tort, and in equity. If that were so^ the complaint might be bad for duplicity. Supervisors v. Decker, 30 Wis. 624. Uut tbe complaint certainly does not state three causes of action, or even attempt so to do. It states no completed sale of tbe appellant’s interest, or contract of sale, or breach of contract, and it asks no accounting in equity.

Tbe first grievance complained of is tbe running tbe boat off. This tbe respondent bad tbe right to do if be had purchased tbe appellant’s interest. All tbe statements of the complaint, down to tbe allegation tbat tbe respondent bad run tbe boat in debt and created liens on it of greater amount than its value, are merely preliminary and introductory thereto. If any possible cause of action is stated in tbe complaint, it is in tbe nature of trover for tbe respondent’s having negligently caused a total loss of tbe appellant’s interest in tbe boat while under his exclusive management and control, which would be equivalent to tbe destruction of tbe boat itself. It .¡is only when tbe complaint against a tenant in common of a vessel or steamboat who is charged with negligence while in its management, is to such effect tbat it states a cause of action.. In Barnardiston v. Chapman, 4 East, 121, tbe plaintiff was tenant in common of a moiety of a ship, and tbe defendants bis co-tenants of the other moiety. The defendants took tbe vessel by force from tbe possession of tbe plaintiff, and sent it' to Antigua, where it was lost. Tbe verdict for tbe plaintiff was sustained, on tbe ground tbat tbe jury found tbat such loss would amount to a destruction of the ship. In Lowthorp v. Smith, 1 Hayw. (N. C.), 255, it is held tbat if a joint owner of a vessel, after getting sole possession, shall, without consent or against tbe will of tbe other owner, send tbe vessel to sea, and she is lost, the jury may consider such, loss as a destruction of the vessel. If a tenant in common, though rightfully in possession, yet by negligence causes the destruction of the property, an action will lie against him in favor' of his co-tenant. Chesley v. Thompson, 3 N. H. 9; Herrin v. Eaton, 13 Me. 193; Maddox v. Goddard, 15 Me. 218; Anders v. Meredith, 4 Dev. & B. 199. “If a tenant of chattels so appropriates them to his own use as to render any future enjoyment of them by his co-tenant impossible, the latter may maintain an action of tort in the nature of trover against him.” Needham v. Hill, 121 Mass. 133. See Desty, Shipp. & Adm. 98; Pars. Shipp. & Adm. 94, and note.

These authorities lay down the most liberal rule for recovery in such cases, and they hold that something must be done with the joint property by a co-tenant equivalent to its total destruction. The mere dispossession of one co-tenant is not sufficient, or damage to the joint property. There must be such an entire loss of the joint property to one tenant, by the negligence or fraudulent conduct of his co-tenant, as to amount to its destruction. In some cases when the property is divisible a sale of it by one tenant in common may give a right of action to his co-tenant in trover for the conversion of his interest or share. Earll v. Stumpf, 56 Wis. 50; Dahl v. Fuller, 50 Wis. 501; Cooley on Torts, 455. Tested by the most liberal rule, this complaint fails to state the essential fact of the loss of the steamboat to the appellant by the negligent conduct of the respondent. The boat was run in debt and liens were created upon it to an amount exceeding its value by the respondent ; but he is liable to pay such debts, and pay and discharge such liens, and the presumption is that he will do so. But, whether he will or not, the boat has not been sold or disturbed by its debts and liens so far, and may never be. No loss of the boat has yet occurred to the appellant. There is considerable conflict of authority as to when such an action will lie against a tenant in common by his co-tenant, but there is no authority to sustain such an action in the case made by this complaint.

By the Court.- — -The judgment of the circuit court is affirmed.

A motion for a rehearing was denied December 1, 1885.