Lamb v. Clark

The opinion of the court was delivered by Bennett, J. The only question in the case is, whether from the facts found by the referee, the ownership of the property sued for, vested in the defendant. The arrangement made between the plaintiff and her sister on one part, and the defendant on the other part, by which the latter was to have their property, both real and personal, and as a consideration for it, was to support them through life, and pay their debts, and the debts of Ross Lamb, seems not to, have been consummated in all its details. The contract was not reduced to writing, which the parties intended should be done when the legal advice could be had, so as to secure the rights of both parties. It appears that at the time of the arrangement the plaintiff had on hand, in cash, some sixty or seventy dollars, a note against ^Julius Clark of fifty-five dollars, a note against the Reads of about one hundred dollars and a joint interest with her sister in a note against Martin Brown upon which some twenty dollars were due. Though the defendant entered upon the performance of his contract, and supported the plaintiff and her sister, and paid debts, etc., and at once took possession of all the property covered by the contract except the cash and notes specified in the report, yet the plaintiff and her sister were permitted to retain and keep by them these items, so that they need not call on the defendant every time they needed small necessaries, and it seems to have been a part of the arrangement that the cash and the notes specified should remain with the sisters, and be expended by them in their support, and in this way, it is true, operate so far to relieve the defendant from liability. The question then is, can the defendant justify the seizing of this property and taking it out of the possession of the plaintiff in violation of this agreement ? On the most favorable view for the defendant of the facts found by the referee it must be conceded that the plaintiff stood as the [351] bailee of this property, coupled with an interest. She had not only the possession but the right of possession, and the right to expend the property for her support. If we treat the defendant as the general owner of this property now in dispute, it is clear he could not justify the taking forcible possession of it in violation of his agreement. He had clothed the plaintiff with certain powers coupled with an interest; that is, with a right of possession, and a right to expend the property for her own necessities ; and though the defendant may be said to have a beneficial interest in the expenditure, yet this can not justify him in the course adopted. It is well settled that a person who has a special property in a chattel may maintain trespass or trover against the general owner. But it may well be questioned whether the title to the money and notes was vested in the defendant. As to them, it may be claimed with some seeming propriety, that the contract was executory, and the rights of the defendant under it inchoate. The fact that the plaintiff, in consequence of some difficulty with the wife of the defendant, had left him and told him she should not live with him any longer, can have no effect in this action. It seems the Brown note had been collected before the defendant possessed himself of the property in the manner stated in the case, and the fact that the plaintiff had exchanged the Bead note for a note signed by the said Bead’s and one Benson, can give the defendant no greater right to this latter note than what he had to the Bead note. The result then must be a reversal of the judgment of the county court, and judgment for the plaintiff for the fifty-eight dollars in cash and the interest from the 18th day of October, 1853, and the Julius Clark note, and the note against the Beads and Benson, and the interest on them from date. Judgment reversed, and judgment for the plaintiff accordingly.