Pratt v. Bryant

[337] The opinion of the court was delivered by Redeield, J. This does not seem to be such a case of fraudulent commixture of goods, as to produce a forfeiture on' the part of the plaintiff. The-rule laid down by Justice Morton, in Ryder v. Hathaway, 21 Pick. 298, seems, to us to be the true rule upon this subject, — that if the intermixture were intentional, but bysome mistake of the facts, the property was not lost. That seems to be the present case. The plaintiff supposed he had made a contract of sale; but in fact he had not. This was his innocent mistake. He may therefore recover either his property, or the pay for it. He should first show a demand and refusal, unless the defendant hare used it, knowing it to belong to the plaintiff, which is not this case. If the defendant use it by mistake, or refused to suffer the plaintiff to take it away, — one of which is virtually true in this case, — he is liable in trover ; or if he have sold the property and received money for it, the plaintiff may waive the tort and sustain assumpsit for the money. 21 Pick. 306, citing Bond v. Ward, 7 Mass. 127. But we think no action of assumpsit will lie, unless in a case like the one last put, or when there has been a sale, either express, or implied, and that the action of book account could not with the least propriety, be extended to a case like the present. The present case, upon the most favorable construction for the plaintiff, is the putting of his wood with the defendant’s; under a mistake of facts, without the fault of the defendants. There was no contract of sale; but the contrary is expressly found. We are to understand, that the plaintiff was not justified in supposing there was any contract of sale closed; for if that were the case, it would amount to a contract. The fault, then, was that of the plaintiff, — but not wilful, or fraudulent, but negligent. Can the plaintiff, then, be considered in any more favorable light, than if he had left his wood upon the defendants’ land, as a naked deposit, and the defendants had used it without his consent. And in no such case could an action of book account be maintained. Nor could such action be maintained upon the defendants, refusal to deliver the wood upon request, or to permit the plaintiff to remove it. This action will never lie for damages sustained by reason of any breach of duty as a bailee, whatever be the character of the bailment. Nor will this action lie to recover damages, which are in [338] their nature the result of a tort. The only ground of recovery here is for the defendants’ refusal to allow the plaintiff to take away so much wood, as he put there by mistake. This they should have done; but their refusal was a mere tort; and the damages could no more be recovered in this action, than in all cases of conversion of personal chattels. There are, in our opinion, strong reasons, in the justice of the case, why this action should not be extended to a case like the present. The commixture is not without the fault of the plaintiff, although not fraudulent in such a sense as to work a forfeiture. In all such cases the claimant will be supposed to be first in fault, in mixing his goods with his neighbor’s, and to be wholly conversant of' the facts. To allow him, then, to come into court for redress, upon the force of his own testimony, and virtually excluding the innocent party, who is not supposed to have equal knowledge of the fact, not having been present at the time of the commixture, will be to allow a party to derive a positive advantage from his own wrong. It is sufficiently favorable to the plaintiff to relieve him from the forfeiture and to allow him to recover upon common law proof. Judgment reversed and judgment for defendants.