Johnson v. Worden

The opinion of the court was delivered by Wheeler, J. As this case is here understood, the defendant was himself a party to the submission to Judge Underwood. Having made that submission, he is bound by the decision, not because he had any authority to submit claims of the assignee, nor because Judge Underwood had any authority as register over the question, but because he could submit his own claim to arbitration, and Judge Underwood had authority as an arbitrator. The right of the defendant to have the avails of the Morse claim go in satisfaction of the plaintiff’s demand, was decided against the defendant, and the plaintiff thereby lost all benefit of the avails, and his claim was left unsatisfied, the same as if he never had received them. When the defendant sold the oxen, he did it in fraud of the plaintiff ’s right to them. The plaintiff had entrusted'him with them, and this disposition of them in that way, was a breach of the trust the plaintiff had placed in him. The plaintiff’s claim in controversy in this case, is founded upon that breach of trust, and this claim, even if it had been proved in the bankruptcy proceedings, would have been saved from being barred, by the provisions of the 33d section of the bankrupt act. By the contract of conditional sale between the plaintiff and the [463] defendant, the plaintiff had his debt against the defendant for the oxen, and also a right to the oxen till his debt should be fully paid. When the defendant converted the oxen by selling them, the plaintiff had his right of action for the conversion, in lieu of the oxen, and could hold that, as well as his debt, till the debt should be paid. When he proved the debt for the oxen, he was pursuing that one of his remedies, and could do so without losing the other, until his right to his pay for the oxen should be fully satisfied. Not having been paid in that way, he had a right to pursue the other remedy, as he has done in this case. There was no exception taken upon the subject of damages, and it is not necessary to consider whether the amount of the dividend on the plaintiff’s claim, tendered by the assignee, should have operated as a satisfaction of so much of the plaintiff’s debt ; nor is it necessary to consider whether plaintiff’s measure of damages should have been limited to the amount due on his debt. Judgment affirmed.