M'Elderry v. Flannagan's Adm'r

Dorsey, J. at this term, delivered the opinion of the court» The correctness of the opinion given by the county court on the first bill of exceptions, depends entirely on the existence of a fact, of which, to view it in the aspect most favourable to the appellee, there is considerable doubt. By the demise of the 18th of August 1811, Flannagan held of the appellants,, by parol, for five years, the whole of the wharf property alluded to in any part of the proceedings in this cause. On the 8th of March 1813, the appellants leased to William Carman a part of it fronting 100 feet on the water; and on the 29th of the succeeding July, by the consent of Flannagan, made a lease of that part of said wharf called The New Wharf.\ to Martin F. Maher, for 99 years renewable forever; and according to the testimony of the appellants, as stated in this bill of exceptions, he, Flannagan, agreed to rent the residue of said.-JVh.arf in his. possession, at the rate of $600 per annum. "W&.erthiisrjvin, the opinion of the court, according to the weight of testimony,^t}|j.s contract of July 1813, is to be considered as a surrender of all those parts of the wharf only which were-leased to Maher, and an apportionment of the rent for the residue, or as a surrender of the whole wharf, and an acceptance by Flannagan of a new lease of all that part of the- wharf not included in Maher’s lease, is wholly immaterial in deciding on. the prayer made to the county court. Before the court could' legally give the instruction prayed for by the appellee, they must admit the truth of the testimony offered by the appellants, and of the testimony given by the appellee, which may operate in the appellants’ favour, and the existence of all material facts [321] reasonably deducible therefrom, even though contradicted in every particular by the testimony on the part of the appellee; Upon no other principle can the case be withdrawn from thó consideration of the jury, who alone are competent to decide on facts of which contradictory evidence may be offered. The agreement of the 29th of July 1813, as proved by the appellants, is therefore a eoncessum in the cause. If there were no proof to show that the possession of Carman’s lot was out of Flannagan at the time of that agreement, then were the court below justified in the opinion they have given. But if there be evidence from which a rational mind could infer such a fact, the county court have invaded the province of the jury, and their judgment must be reversed. The proof on the part of the appellee, is that Carman, in pursuance of his lease, entered upon his 100 feet of ground, erected a shop on 16 feet thereof, and enclosed the whole with a fence. The appellants prove that this was done about the time of the lease' to Car-man. When this testimony is coupled wilh the agreement of the 29th of July 1813, in which the word possession is used, for no other purpose that is discernible, unless it be to exclude from the demise to Flannagan the lot leased to Carman, can, it be said that there is no evidence admissible to the jury to show possession in Carman at the time of such "agreement? He who would refer to the case of Ludlow vs Ogdon, 2 Wheat„ 178, (which however it must be admitted extends the power of a jury to the utmost verge of rationality,) would not hesitate! in returning a negative answer to this question;., The second bill of exceptions presents ers on the part of the appellants, aff of which were refused by the court. In the decision on the first and of the appellee have stated their entire acjpMffltéene'e; and^f that made on the second there is as little c* ** Whether there was an eviction or not depends upon all the circumstances of the case, and not upon the two isolated facts Which have been selected as the basis of the prayer. Flannagan was not bound to resist by force the acts of Carman id taking possession of the lot demised to him, and his notifying Carman, after the distress was levied, that he should consider him his tenant, did not mako him so, or release him from he [322] covenants to the appellants; and upon no principle of law or justice should an act so nugatory and inoperative be construed to divést Flannagan of an unquestionable legal right. The only question designed to be raised by the third bill of exceptions is, whether Flannagan had such an interest in the sloop, as Could be the subject of a distress for rent. By the refusal to give the instruction demanded by the appellants, the' court below have determined, that such a distress was unlawful; and from this decision an appeal has been wisely taken. Even let it be conceded that all the materials and work of the blacksmith, the'ship-joiner, the painter and rigger, were the general property of Carman, and that he had a like interest in the materials and workmanship of the carpenter to the extent of his payments made on the sloop, and also that the shipyard of Flannagan, for reasons of public policy, and for the encouragement ot commerce, protects from distress the property of third persons, placed there in the ordinary course of business; yet is it not a proposition equally undeniable, that Flannagan had the same property in his materials and labour bn the sloop, to the extent ot the balance due to him therefor? The privileges of his ship-yard cast around his interest no protection, and it remained liable to distress in the same manner that his separate property would have been. Joint property, in the possession of one' of the owners, may be seized and sold under a fieri facias against him only, and the purchaser’s right Would be complete to the extent of the interest of him against whom the execution issued; and he might hold possession accordingly. In the present case,- if under the Stat. of 17 Car. II, ch. 7, the jury be required by the appellants to- ascertain the amount of property distrained, they must have limited its value to the balance due from Carman to Flannagan, and if declining to proceed Under this statute, a general judgment' for a return had' been rendered, Carman, by application to a court of equity, would have recovered the sloop,- upon h-is paying to the purchaser the balance due' for it according to his contract. Flannagan’s interest being adjudged distrainable, his right to, maintain- replevin a's the bailee of Carman, so much relied oil in the argument, necessarily falls to the ground' — one joint owner of a chattel being incompetent to maintain replevin [323] against another. And upon no principle can the rights of tho bailee, in such a case, be extended beyond those of his principal. The case of Woods vs Russell, 5 Barn. & Ald. 942, urged by the appellee’s counsel as conclusive upon the ease before us, is clearly distinguishable from it. Here no act was done by Flannagan which could be tortured into an admission that; the entire property in the sloop should pass to Flannagan, hut upon the payment of the whole price stipulated to be paid for her. There the ship-builder was privy to the chartering of the ship by him for whom she was built, assented to tho measurement thereof, and gave the usual certificate of building, &c. to authorise the granting to him a register, which issued accordingly, and could only have been obtained by making an affidavit of ownership. These facts create an irresistible implication, that the builder consented that the general property in the ship should be considered from that time as being in the defendant And in that light were .they viewed by the court. The rights of the party, for whom any article is built agreeably to contract, is very strongly marked out in Mucklow vs Mangles, 1 Taunt. 318. Royland contracted to build a barge for Pocock, and received -from time to time, as the work proceeded, £190, the value of the barge. When it was nearly completed, Pocock’s name was painted on the stern. Royland became bankrupt before its completion. The court held that the barge was not the property of Pocock until finished; that it was a quite different thing from a contract of sale. And Lawrence, Justice, stated that no property vested, till the thing is finished and delivered. Such a general rule, though applicable to the case in which it was pronounced, would ho productive of much inconvenience, and great injustice, if applied to the facts before us. There the contract was simply to build the barge. No agreement to pay the stipulated price as the work proceeded — nothing to specify the particular barge to which the contract or money paid should attach — nothing by which its identity could he ascertained. The delivery of any other barge would have been strictly a compliance with the contract. Not so here; the sloop was to be [324] paid for “as the work advanced,” all the materials and labour, except what appertained to the ship-carpenter’s work, were to be furnished .and paid for by Carman. The contract, therefore, attached on and identified that particular sloop; the delivery of no other would have been by Flannagan a performance of his contract. Carman had, therefore, at the time of "the distress, a general property in the sloop equivalent to the money paid, and labour and materials by him found on account thereof, but no further. The residue of the property therein remained in Flannagan, liable to seizure and sale, on process for the recovery of debts or rent due by him; and by no proceeding in a court of law could Carman recover possession of the sloop until payment, or tender of payment, of the whole price specified by the terms of his contract. The opinion given by the county court on the second bill of exceptions is assented to; but that delivered by them on the ¿first and third bills of exceptions is dissented from. JUDGMENT REVERSED, AND TROGEDENDO AWARDED