Rider v. . Union India Rubber Co.

*385 Balcom, J. The verdict of the jury settled the question that the defendant did not purchase the property of Eider & Brothers, or obtain or use .the same in a way to estop the plaintiffs from claiming title in themselves as assignees of Goodyear & Ely; also that the plaintiffs were the owners of the property. The facts in the case are, in substance, as follows: The defendant used the property in its (the company’s) business, under the belief of the managing agent that the company had purchased it; and the plaintiffs left the same in the possession of the company, because it was their intention to sell the same to the company, and for the reason that they expected the company would pay for it. The property was such as the company needed in its business, and the plaintiffs assented to its use by the company until they demanded it, on the 9th day of October, 1856, which was one day. prior to the time this action was commenced. The statute of limitations was no defense to the action; for the plaintiffs were not permitted to recover for the use of the property, except during the time the defendant used it, within six years next before the commencement of the action. (See Davis v. Gorton, 16 N. Y. Rep. 255; Sherwood v. Phillips, 13 Wend. 479.) I am unable to see how the prior use of the property by the company^ relieved the company from paying for the use of it within the six years; for the company was not guilty of a wrongful conversion of the same before it was demanded of the secretary. Its previous use by the company was with the knowledge and assent of the plaintiffs, and therefore was lawful. The question whether-the plaintiffs could recover the value of any portion of the property, as for a conversion thereof at the time the same was demanded, is not in the case. For the plaintiffs, at the commencement of the trial, waived all claim to its value, and went for the value of the use only, *386 The former suit and judgment were not a bar to this action. The defendant’s counsel objected to the roll in" that suit being given in evidence, on the ground that the defendant never claimed and did not then claim that it purchased the property of the plaintiffs. The defendant is therefore estopped from now insisting that the plaintiffs could have recovered the value of the property in the former suit, if they had given all their evidence, on the ground that the same was sold and delivered to the defendant; and that the former suit and judgment were a bar to this action, within the rule laid down in Miller v. Manice, (6 Hill, 114.) The judgment roll in the former suit was competent evidence to establish the fact that the defendant never purchased the property in question of the plaintiffs. But if such evidence was unnecessary, under the disclaimer of the defendant’s counsel that the defendant never claimed and did not then claim that it purchased the property of the plaintiffs, there was no legal error in admitting the roll in evidence. It only proved a fact which the defendant’s counsel conceded. , The defendant’s counsel contends that the plaintiffs could not recover for the use of the property, because the defendant took possession of it and used it under the belief of its managing agent that the company had purchased the same, and because the plaintiffs intended to sell it to the company and expected the company would pay them for the1 same. He relies upon Smith v. Stewart, (6 John. 46,) and Bancroft and wife v. Wardwell, (13 id. 489,) to sustain this proposition. The former case shows, that where there is a contract for the purchase of land, under which the purchaser enters into possession, but afterwards refuses to complete the purchase, the vendor can not maintain an action of assumpsit against him for use and occupation, but must resort to an action of trespass and ejectment to recover the mesne profits. ¡Nothing different was decided in the latter case; and no intimation wras made in either of those cases that the defendant could avoid liability for the use of the land when properly *387 proceeded against therefor. Those cases therefore are not, in principle, against the recovery in this action, but rather favor it. It is clearly just and equitable that the defendant should pay for the use of the property in question, while the same was used in its business; and the plaintiffs have only recovered for such use within the six years next before the commencement of the action. The defendant, as has been seen, was not a wrongdoer in using the property, and was benefited by its use. The plaintiffs did not give or intend to give the use of the same to the defendant; and notwithstanding the fact that they intended to sell the property to the defendant and expected the defendant would pay them for the same, I am of the opinion the law implies an agreement by the defendant to pay the plaintiffs the value of the use of the property while the same was used in its business. Implied contracts “ are such as reason and justice dictate, and which therefore the law presumes that every man undertakes to perform.” (1 Cowen’s Tr. 2d ed. 47.) The defendant is a corporation, and did not act in a manner to make a contract for the purchase of the property. Its managing agent did not profess to make any agreement either for its purchase or use. He testified that “we (meaning the company) had use for the property, and we expected to buy itand that he, as managing agent of the company, took the responsibility of using the same in the company’s business. Reason and justice, therefore, dictate that the defendant should pay the value of the use of the property while the same was used in its business; and I hold that the law implies the defendant agreed so to do. The intention of the plaintiff to sell the property to the defendant, and their expectation that the defendant would pay for the same, do not, under the circumstances, forbid the idea of an implied agreement on the part of the defendant to *388 pay for the use of the property, though I confess the point is not free from difficulty. I should have been better satisfied with a judgment for the value of the property at the time the same was demanded of the defendant, and for the sum it had been depreciated by being used by the defendant. But the judgment is less than it would have been if it had been given in conformity to such a rule; and as all forms of action are abolished by the code, the defendant can not complain of the judgment as it now is. A new trial would only damage the defendant; for the plaintiffs could recall their waiver of the value of the property, and recover a larger judgment, on another trial, than they now have. The point has not been made by the defendant’s counsel, that interest was not allowable from the time the action was commenced, My conclusion is, that no error was committed on the trial to the prejudice of the defendant, and that the judgment of the Superior Court should be affirmed, with costs. Davies, J. also read an opinion in favor of affirmance. Judgment affirmed.