Hunt v. Douglass

The opinion of the court was delivered by Bennett, J. This was a case tried by the county court, without the intervention of a jury; and the only question for this court is, whether the facts stated in the bill of exceptions show, that, as matter of law, the judgment should have been for the plaintiff, instead of the defendant. The defendant, as an officer, bad attached and sold the horse in question, as the property of one Michael Lee, at the suit of one of his creditors. The facts found by the bill of exceptions are, that the plaintiff was the owner of a certain horse, which he put into the possession of his brother, John K. Hunt, to be used by him and disposed of, and that the bailee sold the horse conditionally to Lee, or rather exchanged with him for another horse, for which Lee was to pay fifteen dollars, as the difference, and the horse which Lee received was to remain the plaintiff’s property until the fifteen dollars were paid, which the case finds to be still unpaid. The case farther finds, that when the bailee traded with Lee, though the exchange was accompanied with a condition, that the horse put away should remain the property of the plaintiff, until the difference was paid, yet Lee was told by the bailee, that he might trade away the horse, if he would keep the security good, and that Lee had traded three times, and that the horse now in question is the one which was obtained upon the third exchange. We think the court were right in giving judgment for the defendant. Though it should be granted, that the plaintiff should be protected in his ownership of the first horse, until the condition was performed by Lee, upon the ground that the property in the horse had not passed, yet the question in this case is, had the property in the horse now in dispute vested in the plaintiff at the time of the attachment. The case shows, that John K. Hunt had the bailment of the first horse to use, clothed with a power of sale. This, of [131] course, was a personal trust; and the bailee had no authority to delegate this trust to another. The maxim is, “ delegata potestas non potest delegari.” Lee then had no authority, as derived from the plaintiff, to deal in horses, and he disposed of the one he received from his bailee without right. This did not defeat the plaintiff in his title to that horse; and the title to the one received in exchange by Lee would not vest in him, at least not until the plaintiff had ratified the acts of Lee ; and there was no evidence in the case, tending to show a ratification at the time of the attachment, and none in the case, unless the bringing of this suit should be regarded as such. But if this were not so, I, for one, should not be disposed to extend the doctrine, which protects the vendor in his property, while in the possession of the vendee upon a conditional sale, as against creditors of the vendee, so far as to permit the vendee to exchange that property to an unlimited extent, and thereby invest the vendor with the title to the newly acquired property, even though the vendee may have a general authority so to do from the vendor. It does not appear upon what ground the county court proceeded in rendering a judgment for the defendant. It might have been upon the ground of collusion in point of fact. Doubtless the case contains evidence tending to prove collusion; and it is always necessary, that enough should affirmatively appear upon a bill of exceptions, that this court may see that there has been error in the court below. We think the judgment of the county court should be affirmed.