Vanderburgh v. Bassett

Atwater, J. By the Court. This was an action commenced in the District Court for the Fourth Judicial District, by Bassett, the Plaintiff below, to.recover of the Defendants the value of certain personal property, alleged to have been wrongfully taken by the Defendants and converted to their own use, of the value of six hundred dollars. It appears from the case that the firm of Sholl & Atwood, doing business in Hennepin County, becoming insolvent, made a general assignment to Bassett for the benefit of their creditors, and that the property, which is the subject of this action, was a part of that received by Bassett under the assignment. Plaintiff alleged title to the property and possession in himself. Two of the Defendants, Yanderburgh and Cady, answered separately, denying the taking and conversion, and denying property in the Plaintiff. Two of the other Defendants, Caldwell and Turnbull, also deny the wrongful taking and conversion, and title in the Plaintiff; and further, set up, that they took the property in question on a writ of attachment, issued in an action in which the said Yanderburgh and Cady were Plaintiffs, and Sholl & Atwood were Defendants, alleging that they seized said property in their capacity of Sheriff and Deputy Sheriff, by virtue of said writ of attachment, as the property of Sholl & Atwood. The writ of attachment was served, and the property taken by the Sheriff April 21, 1858. The answer further states that the property was wrongfully taken by the Plaintiff from the possession of said officers, on the 30th day of April, 1858, and was re-taken by Deputy Sheriff Turn-bull, May 12, 1858, which is the taking and conversion complained of by the Plaintiff. The reply shows that on the 30th day of April, 1858, the Plaintiff Bassett commenced an action of replevin against Caldwell and Turnbull, to recover possession of the property, that the Coroner, on said day, took the property and delivered the same to the Plaintiff, and that on the first day of May following, Caldwell, one of the Defendants in the action of replevin, gave notice of exception to the surety in the replevin bond, and that the surety justified May 15th. It thus appears that the Coroner delivered to the [250] Plaintiff possession of the property on the day when the action of replevin was commenced, instead of retaining possession of the same for the period of three days, as it is claimed the statute requires. There was a verdict for the Plaintiff below, upon which judgment was entered, from which the Defendants appeal. The Coroner of Eamsey County took the property in question by virtue of a requisition to him directed in an action of replevin against two of the Defendants below. lie thereupon delivered the same to the Plaintiff, who thus became entitled to the possession of the same during the pendency of that action, or until the rights of the parties were determined in that action. It is claimed by the Appellants, that the Plaintiff in the replevin suit, acquired no right by the delivery of the property to him, before the third day from the taking had expired. We think it was the duty of the Coroner to have retained possession of the property for three days, as the Statute (Comp. Stat. p. 549, Sec. 127,) manifestly intends that the Defendants shall have the right to the possession of the property, upon giving the requisite security. Tet the Appellants cannot urge this objection. ■ Eor they have excepted to the sufficiency of the sureties, on the undertaking of the Plaintiff, and must be held to have waived their right to claim a return of the property. It is true that it appeared that the Defendant Caldwell, on the 13th of May, served on the Plaintiff’s attorneys a notice of countermand of exception to the surety. But this could not reinstate the Defendant in any right he had lost by excepting to the surety, as the three days within which he could claim a return of the property had expired. Nor, again, does it any where appear from the case, that the Defendants ever claimed a return of the proj)erty in the replevin suit, or pretended or attempted to comply with the provisions of the Statute entitling them to a return. Whatever irregularities, therefore, may have occurred in the delivery of the property by the Coroner to the Plaintiff, the Defendants do not show themselves prejudiced thereby, and their objections cannot now avail. The Plaintiff thus became legally entitled to the possession of the property, and being so in possession, the Defendant^ [251] (Caldwell and Turnbull) took it from Mm on tbe 12tb of May, 1858, by virtue of the same process on which it bad been originally taken, before tbe action of replevin was commenced. This retaking was clearly unauthorized and illegal. Tbe office of tbe writ of attachment was exhausted, by virtue of tbe first taking under it. Tbe title to the property might have been tested, either in tbe original action, or in that of replevin, but the last named action and tbe proceedings under it, gave tbe right of possession meantime to tbe Plaintiff, at least so far as these Defendants were concerned. And in re-taking tbe property, tbe Defendants rendered themselves liable to tbe Plaintiff, either in an action of trespass, or for tbe value of tbe goods. There is no objection to tbe form of tbe action in this case. It is substantially an action of trover under tbe old form of pleadings. Trover might be maintained where an action of trespass de bonis asportatislwoxWL lie. In order to maintain trover two things are necessary, viz: property in tbe Plaintiff (either general or special) and a wrongful conversion by tbe Defendant. (12 J. R. 403, 14 J. R. 403, 13 Wen. 63, 9 Cow. 670, id. 52, 14 Pick. 356.) By bringing trover the party waives tbe trespass, and recovers tbe value of tbe property as damages. Tbe wrongful taking is admitted, or at least shown by tbe pleadings, and is evidence of tbe conversion. This view of tbe case "disposes of several of tbe objections of tbe Defendants below, to tbe charge of tbe court to tbe jury, and refusal to charge as requested. But it is claimed that'there is no evidence to show that tbe Defendant Cady was guilty of either taking or converting any of tbe property. Prom tbe testimony of Turnbull, one of tbe Defendants, it appears, that be took tbe property by direction of W. C. Yanderburgh (one of tbe Defendants), and bis attorney, although be was not certain as to tbe participation of tbe latter.. He further stated, that be “ delivered said property to W. C. Yanderburg & Co., tbe defendants. .1 bold a receipt from them. I bad it about five weeks in tbe Every. They requested me to • do so.” Tbe witness on cross-examination stated, that when they were talking about taking tbe property, Mr. Cady was not present — that be did not remember seeing [252] Mm until about a month ago — that Mr. Cady’s name was on his receipt for the property — that Mr. Vanderburgh put on the name, “ ~W. C. Vanderburgh & Co.,” and that Mr. Cady was one of the Company. There was further evidence tending to show that Cady was a resident of Michigan at the time of the taldng, and did not actually hnow anything of it, or the commencement of the action, in which the attachment issued. It is unnecessary to decide whether Cady actually participated in the taking of the property. Torts may arise in the course of the business of the partnership, for which all the partners will be liable, although the act may not have been assented to by all the partners. (Story on Part. S. 166; Parsons on Contracts, p. 160.) And it has been held, that the conversion by one partner of property which came into the possession of the firm on partnership account, is the conversion of all. Nisbet vs. Patton, 4 Rawle, 120; Coll. on Part. B. 3, Ch. 1, Sec. 6, p. 305-6. See also Hawkins and Logan vs. Appleby and Moore, 2 Sand. Sup. C. p 421, and cases cited; 4 Gill. 406. The original taking by the Plaintiffs under the writ of attachment was for the purpose of collecting a debt, claimed to be due from the firm of Sholl & Atwood, who, it is alleged, were owners of the property. The collection of debts due the firm is within the ordinary scope of business of the partnership, and the receipt of money or property, by one partner, in payment, will be binding on the firm, even though such partner should convert the same to his own use, without authority from or consent of the firm. The second taking of the property by the Appellants was in pursuance of the first, and for the accomplishment of the same object. The property was delivered to the firm of Vanderburgh & Cady, was receipted for, and retained by them, and it is reasonable to presume, formed a part of the partnership assets. The fact (if it be considered as proved) that one of the partners was out of the State at the time of the taking, can scarcely be considered as any evidence in his favor, for the presumption is that he had given full authority to the remaimng partner to transact all business pertaining to the partnership ; and it is also in evidence that Cady had returned to this State before the trial below, and it does not appear that he ever objected to the course pursued by [253] Yanderburgh in the transaction. These circumstances might perhaps justify a jury in finding actual assent on his part, though we do not think that necessary in order to hold him responsible. He comes within the rule laid down in the cases above cited, and must be held responsible for the acts of his co-partner, even though actual participation in, or assent to them, be not shown. The judgment below must be affirmed.