Allen v. Edgerton

After argument, Hutchinson, C. J., (after stating the case,) pronounced, the opinion of the Court. — I am inclined first to dispose of the exception to the decision of the court, rejecting the testimony, offered by the defendant, to show, that M’Daniels had the property of Seely in his possession, when he paid the debt to the bank. We consider,that this testimony was correctly rejected; for nothing in the case shows, that the plaintiff had any means or power, to compel an appropriation of that property to relieve his liability ; nor that M’Daniels ever undertook to pay, or paid, the bank debt in consideration of his having that property in his possession. He seems accountable to no person for that property but to Seely. At any rate, the defendant,or Knower,the creditor, for whom he has acted, had as much control over that property, as the plaintiff had. The instructions to the jury, about joint possession of vendor and vendee, were, that it must be considered a fraud in law which would avoid the sale as to creditors. Thus far it is all the defen [444] dant contends for. But his objections are urged to the after extplanation. that (supposing the sale bona fide,) in order to render it thus void, the possession and use of the vendor must be of the same description, as that of a joint owner, in using, occupying and disposing of the property. Now, it is not easy to perceive, that any thing short of this would furnish any evidence, that he yet remained the owner. That is the reason why possession must be changed,to announce a change of ownership, and prevent the former owner from gaining a credit by his continued possession. His laboring about the factory or shop as an underworkman would not have the effect to give him a credit. In such case, an important inquiry is, who is at the head, controling the business ? If a candid observer would find it difficult to determine which of the two had the chief control, that, according to the charge, and according to our former decisions, would be deemed a joint possession. This part of the charge refers to the manner of carrying on the business, from which the world might infer, that one or the other, or both, remained owners, and entitled to credit as such. In this natural view of the instructions upon this point, they are correct, and correspond with our decisions in the cases of Durkee and Mahoney, and Mott and M’Niel. There remains an exception to that part of the charge, which relates to the plaintiffs refusal to go on with the contract, just before the defendant attached. It appears, that the goods, 8tc., were under a prior attachment from which Knower proposed to redeem them, on terms proposed by him; to which the plaintiff would not consent. It does not appear, that the plaintiff knew of this attachment, till that time. Nothing was said about it in the agreement between Seely and the plaintiff, under which the plaintiff took possession. Possibly the knowledge of this attachment had some effect to discourage plaintiff about proceeding to manufacture, &c. under his contract. But, whether it had or not, had Seely a right to be off of the contract on his part, and divest the plaintiff of his right to, or lien upon, the property, and leave plaintiff witli no security for his liability to M’Daniels ? We think he had no such right. The plaintiff had carried on the business several weeks under his contract. Seely had no right to put an end to the contract without putting plaintiff in the state he was in at the beginning. This could not be done without discharging plaintiffs liability to M’Daniels, and accounting for plaintiff’s labor, &tc., while he carried on this business. This as much required the concurrence of both, as did the making of the original [445] contract. If Seely should sue the plaintiff for a breach of his contract, in that action it might be litigated and decided, whether the plaintiff had good reasons for not proceeding further; and, if not, what damages would make Seely good. But we recollect no case in which one party alone can so rescind a contract, as to divest the property conveyed, except where that party, who would rescind, has discovered a fraud on the part of the other in making the contract, and can himself restore what he received from the other in as good a plight, as it was in when he received it. This, surely, is not such a case. The instructions given to the jury upon this point, also, are correct. Royce & Hodges, for plaintiff. Clark & Bates, for defendant. The defendant’s counsel suggest some supposed inaccuracy of the case. The action has been laid over once or twice, to give him an opportunity to apply to the presiding judge, to advert to his minutes, and amend the case, if any thing is incorrect. No amendment is produced ; and we must follow the rule, we have often recognised, that the party excepting must procure sufficient to be placed upon the record in the case, to show an incorrect decision of the court that tried the cause. That the defendant has not done in this case ; and the judgement of the county court is affirmed.