Stamford Steam Boat Co. v. Gibbons

By the Court, Savage, Ch. J. The counsel on each side having raised a number of points relating to the evidence, some of which were not raised in the court below, and to none of which was any exception taken. The only exception taken was to the judge’s charge to the jury, which was, that upon the whole evidence, the plaintiffs had not a right to recover. Whether the act of the general assembly of Connecticut incorporating the plaintiffs was properly proved ; whether the existence of the corporation was sufficiently shewn; whether the plaintiffs had power to make the contract in question; and whether it was proved as laid, are questions not arising upon this bill of exceptions. [331] It seems to be very well settled, that in case of a sale of a chattel for a fair price, the vendor warrants the title. If the title is subsequently claimed by another by suit at law while in the hands of the vendee, he is bound not only to give notice of such claim, but to defend that title before he can have recourse to his vendor upon the warranty. The case of lessor and lessee are not altogether analogous. The lessor conveys not the title to the lessee, but the possession for a given time. If the possession is taken from the lessee legally by virtue of a superior title, there can be no question that he is discharged from his obligation, and is also entitled to recover his damages. In case of the warranty, the suit is brought against the vendee, the person in possession. In case of the lease, the suit is a proceeding in rem and against the lessor, and in case of attachment or execution, the possession of the chattel is taken. Had the creditor in this case, who sued out the attachment, claimed to be the owner of the boat, he must have brought his suit against Gibbons, and Gibbons then must have defended the suit in the same manner as if he had been a vendee ; but the title to the boat is not disputed. A creditor of the owner seeks to enforce the collection of a debt due from the owner. Had an execution been levied on the boat instead of an attachment, there could be no doubt that the defendant would have been discharged from his liability, and that on the ground that the possession of the boat was taken from him by paramount authority—the authority of law. An attachment is also a process known to the law, and as was said by this court in Jenner v. Joliffe, 9 Johns. R. 385, it is to be presumed that it was issued conformably to the laws of the place where it was executed, in due form of law. The case of Edson v. Weston, 7 Cowen, 278, decides that where property is bailed and subsequently taken from the possession of the bailee by virtue of an execution, the bailee is discharged from his contract. Had the horse in that case been taken by virtue of an attachment, I do not see that the rights of the parties would have been altered. The bailee there was merely a depositary, and answerable only for gross neglect. So, had the bailment been different, had he been a hirer of the property and agreed to pay for the use of the animal, he would have [332] been answerable but for ordinary care. If process of law takes the property from the bailee, he must be excused, whatever may be the species of bailment. The law is supreme, and resistance unnecessary, because improper. I do not, however, put this case upon any species of the contract of bailment, and in the absence of authority in point, we shall be most safe in applying to it the rules of reason and common sense. The plaintiffs let their boat for a specific time : this implies their right to do so, and guarantees to the defendant the uninterrupted use of the boat for the term. If a creditor of the plaintiffs takes the boat by process of law, this proves that they had not the right themselves, and consequently could not grant to the defendant the right to the use of the boat; they were therefore in fault. If a trespasser had forcibly taken the boat, the defendant must have been responsible, for it wouuld not have been the fault of the plaintiffs. If A. hires a horse and gig for ten days to go a journey, and after he has started, the property is taken from him on an execution against the owner, surely the hirer is not obliged to return the' horse and gig, or to pay for the use which he has not had. Does it make any difference if the process is an attachment ? That equally dispossesses the hirer as an execution. Can it be contended that the hirer is bound to defend suits brought against the owner because they are commenced by attachment ? This will not be pretended under circumstances where the hirer can give immediate notice to the owner. It was not the duty of the defendant in this case to defend the suit which was commenced ; there was a debt actually due, though it appears that the attachment was quashed upon its return; for what cause does not appear. Neither can I see why it was the duty of the defendant to give bonds for the boat, either to pay the debt or to retain the boat. The owners were present by their agent, and were notified that the defendant was deprived by process of law of the use of the boat. I apprehend it was their duty to have relieved the boat as well as to defend the suit. They refused to do so, and the defendant was at liberty to consider the contract rescinded by the plaintiffs. Judgment affirmed, with single costs.