Oviatt v. Sage

Daggett, J. The testimony offered by the plaintiff, on the trial, was rejected, on the ground, that it shewed that a tort was committed by Coi b, in selling the cheese, and that trover, and not account, was the proper remedy. This opinion is erroneous. 1. The part owner of this cheese, being a tenant in common with the plaintiff, had a right to sell his part of it, at any rate ; and it being an article manufactured for sale, he might, for aught which appears, have sold the whole. At least, the plaintiff might authorize him to sell the whole ; and it should have been submitted to the jury as a question of fact, whether the testimony did not so authorize the sale, if not already made, and if made, whether it did not amount to a ratification, upon the well known principle that a subsequent ratification is equal to a prior authority. The sale of the part of a chattel, which belongs to the seller, makes the purchaser and the other co-tenant tenants in common of the whole. 2. It was, however, strenuously urged, that this sale was a destruction of the common interest, and of course, no remedy was left but trover. It is very clear, that nothing short of a destruction of the property will render the co tenant liable in tort; for he has an equal right with his fellow commoner to the possession and use of the property. This is familiar law. Cobb could either sell the whole, and for aught that appears, he might well have so done, or, he might have sold his third part, and made the purchaser tenant in common with the plaintiff. The testimony conduced to prove such to have been the fact, and that the plaintiff and defendant both acquiesced in this disposition of the cheese. In that case, there would exist the privity, which, it is said, is essential to sustain the action of account. But the judge, by rejecting the testimony, would not suffer the assent of the plaintiff to the sale, nor the agreement of the defendant to consider the plaintiff tenant in common with him, to be inferred from the testimony. In this, I think, the decision was erroneous ; and that a new trial should be granted. [100] The other Judges were of the same opinion, except Brain' AHD> j wj10 was absent. New trial to be granted.