Trudo v. Anderson

Christiancy J.: It is insisted by tbe counsel for tbe defendant in error that, as no exception was taken in the Court below to the rulings of law embraced in the "finding, this Court will not now inquire into the propriety of any thing in the decision. Doubtless any ruling of law which might affect the finding of facts, as upon the admission or rejection of evidence, must be brought before the Court by excejDtion, as upon a trial before a jury. Such ruling of law would, in the language of the 90th rule of the Circuit Courts, be “embodied in the finding of facts.” But when the only question is whether the facts found support the judgment, the general conclusion of law from all the facts found can with no propriety be said to be embodied in the finding of facts, but is merely the result to be deduced from it: and in such case the finding of facts must, on principle as well as by the rule cited, be treated as a special verdict: and no exceptions are necessary, as the record itself presents the question as fully as it could be presented by exceptions. The object of the statute and of the rule was to give to the parties the same facilities for review in an appellate court, whether the trial at the Circuit should be by the Court or by a jury. But it is urged that this decision is in conflict with the decision of this Court in Sweetzer v. Mead, 5 Mich. 109. There is no such conflict. By reference to the record and the briefs (neither of which appear in the report) it will be seen that there was a bill of exceptions setting out the evidence, to a small portion of which only exceptions were taken, as well as to the exclusion of other testimony offered. There was also a finding of facts by the Court, and an amendment to the finding; and we were asked to pass upon the whole evidence, which would, in effect, have been a review of the Judge’s finding: and it was — 366 — held that we could, in such case, only regard the exceptions taken at the trial, and the further question, whether the judgment conformed to the finding*: in other words, whether the facts found authorized the judgment given. The language of the opinion cited by counsel has no reference to the particular question here involved. But it is further objected on behalf of the defendant in error, that the assignment of errors is not sufficient to raise the question, as upon a special verdict. The twelfth rule of this Court requires all assignments of error to be special. The only assignments in this case are, first, the general assignment, and, second, “that the written finding of facts and law by the Circuit Judge does not support the judgment.” Technical accuracy would have required the assignment to be “that the finding of facts did not support- the judgment.” But on looking at the record and the assignment, we are satisfied such was the intention of the assignment, and that the defendant in error could not have been misled as to the question intended to be raised: and considering the objection as purely technical, we gave the plaintiff in error liberty to amend* or to have the record considered as amended. We must therefore consider the case upon the finding as upon special verdict. The Court found as a fact that the plaintiff, in July 1860, was the owner of the horse in question; and to warrant the judgment in favor of tl^e defendant, it must appear, first, that the property, or the plaintiff’s right of possession, had been divested, or second., we must be satisfied that the Court below was right. in holding that a demand of the property was necessary before the institution of the suit. To authorize the judgment on the first ground the Court must have found, as a fact, the ratification by the plaintiff of the exchange made by the servant of his — 367 — agent, and of the subsequent conditional sale by McAlister of the horse received in exchange; for the simple authority of McAlister to sell the horse for the plaintiff would not have authorized the exchange if made by McAlister himself; much less when made by his servant: and the conditional sale of the horse received in exchange could in no way bind the plaintiff, unless ratified and adopted by Mm. But while the finding sets forth the particular facts and circumstances in evidence with more particularity than necessary, and is therefore thus far more in the nature of evidence than of a finding of facts, it fails entirely to find directly the fact of ratification, or any fact or state of facts which would, in law, constitute such ratification. Certain facts are set forth in reference- to a conditional sale made by McAlister of the horse received by his servant in exchange for the plaintiff’s horse: but these facts, though probably with others considered by the Judge as circumstances tending to the proof of ratification, cannot be treated as a finding of that fact by the Court. If admissible and sufficient to authorize the inference of ratification, they were certainly no more than mere evidence, and it was for him to draw the inference. A finding of facts should set forth the facts found, not merely the evidence tending to prove them. Upon a special verdict the Court can draw no mere inference of fact which the jury have failed to draw from the evidence. But we see nothing in this- evidence which, without other facts not found, could even tend to the proof of ratification: as the plaintiff himself does not appear to have had any connection with the conditional sale, nor even to have been informed of it, either before or after the transaction. And an agent cannot ratify an act done by himself, or his 'servant beyond the scope of the agency, so as- to bind the principal: otherwise an agent might enlarge his o.wn powers to any extent wfithout Ms principal’s consent. It remains only to inquire whether a demand was necessary — 368 — before bringing suit. This must, we think, depend upon the question whether the taking by the defendant was lawful. The finding of facts sufficiently shows that the original taking by the party with whom the exchange was made by McAlisters servant was unlawful and wrongful, whether the horse given in exchange was stolen or not: as the servant who made it had no shadow of authority, but was a mere' stranger to the plaintiff. The plaintiff had not given to his agent, McAlister, any _ indicia of Ownership, but the bare possession, to enable him as agent to sell the horse; but not even the possession was ever trusted by the plaintiff to the servant. The plaintiff therefore appears to have done no act, and to have been guilty of no negligence, calculated to mislead others, or to induce a belief that even McAlister (much less his servant) was the owner, more than generally happens in the ordinary case of leaving property in. the hands of an agent for sale. Had the ordinary mode of doing such business required any particular safeguard for the protection of third persons, which he had omitted, or done any act calculated to impose upon them, and others had been prejudiced by such act or omission, the case might have been different: but in the absence of all such proof, the taking by the person who received the horse in exchange being unlawful, those who received the possession and claim through such wrongful taker, stand merely in his place, and can claim only in his right. But the counsel for the defendant in error insists this principle does not apply to a purchaser in good faith and without notice, and that to render the defendant liable to a suit for the property, a previous demand should have been made. This exception to the principle just stated seems now to be established in the State of New York, as the cases' cited by defendant’s counsel sufficiently show; and the authority of these cases has been recently followed in Indiana: — Wood v. Cohen, 6 Ind. 455. So far as the — 369 — New York rule does not depend upon the distinction between replevin in the cepit and the detinet, it seems to rest upon the principle that “ a man who innocently purchases property supposing he should acquire a good title, ought not to be subjected to an action until he has an opportunity to restore the goods to the true owner.” The apparent equity of this rule would, on first view, seem to recommend it. But upon a careful examination its justice, as a rule of law, will be found to be more apparent than real, as it must depend upon the peculiar circumstances of each particular case: and its injustice would be manifest if applied to a case where a previous demand would impose a serious inconvenience upon the plaintiff. It is not easy to give a satisfactory reason why the true owner, who has been guilty of no wrong or negligence, should be prejudiced by a transaction between the wrongful taker of his property and a third person, or how such transaction cari impose upon him a new obligation. In many cases a previous demand would impose upon the owner a serious inconvenience, and in some cases might be equivalent to a denial of his right; and “ if he happen to find in whose possession Ms property lies, a demand will perhaps raise an alarm, and hurry botL the wrong doer and the property beyond the plaintiff’s reach.” — Per Cowen J, 3 Hill, 360. Why should the right of the plaintiff to recover his property be made to. depend upon the good faith of the defendant, when that good faith is no defense against the plaintiff’s right of property or possession when a previous demand has been made? The principle upon which the New York rule rests might properly have some weight with the Court upon a question of costs, where these are discretionary, or might justify the Legislature in refusing costs to the plaintiff where a previous demand could have been made without serious risk or inconvenience, and the suit has been brought without such demand. But we think — 370 — the principle of the rule can not properly be extended to tbe right of action. We do not think the question of intent, or good faith, in a party receiving possession from a wrongful taker in such cases, and where the owner has been guilty of no wrong or negligence, can have any bearing upon the right of recovery in a civil suit for the property or its value; and such is clearly the weight of authority both in England and the United States. — (See cases cited by counsel for plaintiff in error, and opinion of Cowen J. in Barrett v. Warren, 3 Hill, and cases cited). The taking in this case, as shown by the finding, was clearly a trespass, and would have constituted, of itself, a conversion in trover without proof of a demand and refusal. We can see no greater reason for a demand in an action of replevin under our statute. The New York Revised Statutes kept up, in the writ and declaration, the distinction between replevin in the cepit and that in the detinet: and this distinction seems to have been thought to have some bearing upon the question of a previous demand in such a case.— (See Barrett v. Warren, above cited. See, also, Ingalls v. Bulkley, 13 Ill. 315). It seems to have been thought that a defendant could not be said wrongfully to detain the property in such cases till he had refused to give it up on demand; and this is the ground taken by the defendant in error here. But the answer to this is, that our statute, so far as regards the form of action, recognizes no distinction between replevin for taking and that for detaining; but the action is, in'form, in all cases for detaining only.— Comp. L. §§5010 and 5028. The declaration therefore will be supported, as well by proof of an unlawful or wrongful taking, as of a wrongful detention. The judgment must be reversed, and a judgment entered in this Court for the plaintiff, for six cents damages and the costs of both courts. The other Justices concurred. Footnotes [*] By striking out the words “and law” in the speoial assignment of errors.