Buel v. Pumphrey

Le .Grand,-C; J., delivered the opinion of the court. This is an action of trover instituted to recover the value of [267] a negro woman. The plaintiff, after having proved property-in the woman, proved that his agent, in August 1847, went to the residence of the defendant with an order demanding that the woman should be delivered to him as agent of the plaintiff; that the defendant said at first, that the plaintiff had the right to take her away at any time, but afterwards (he in the meantime having had a conversation with his wife,) refused to deliver her up, saying, that if he, the “defendant did not get her she should never be of service to Pumphrey, (the plaintiff,) or any one else.” It also appears from the testimony at the time of the presentation of the order of the plaintiff to the defendant, the agent told the defendant he liad purchased the woman for his sister-in-law, who resided in Washington. It also was given in evidence, that some days after the interview of the agent with the defendant, the plaintiff went to the residence of the defendant to get the woman, but that she made her escape, and that he subsequently advertised her. On this state of facts the defendant presented to the county court four prayers, all of which were rejected, and it is from this refusal of the court that the appeal has been taken. The first and third prayers are, in substance, the same, and present the same question. They ask the court to instruct the jury, that although they may find a demand and refusal, yet such demand and refusal are insufficient if the jury should also find, that the agent represented himself as owner of the woman, and as such was dealt with by the defendant. It appears from the testimony of the agent, that he carried with him an order of the plaintiff to the defendant io deliver up the woman, and from the testimony of the witness, Burgess, that he was present at the beginning of the interview between the agent and defendant, and that the agent handed a paper to the defendant, at which the latter looked. It is clear from this evidence, that the defendant was duly notified, in writing, of the demand of the plaintiff. At all events, these circumstances were sufficient to justify the jury in finding the fact of a demand by and on behalf of the plaintiff What [268] ever may have been the representations of the agent, it is, on the evidence, beyond all dispute, that in point of fact, he had not purchased the woman. The ground on which the defendant’s counsel rest these prayers is, that the demand should have been made on behalf of the plaintiff, whereas, they insist, the evidence authorised the jury in finding that the demand was made on behalf of the agent, who had, during .a part of the conversation, said, he had purchased the woman from the plaintiff. It is undoubtedly true, that if the bailor sell during a bailment, the purchaser, and not the bailor, is the party after sale, to demand the goods of the baileee, and on refusal to bring trover. 4 Bingham, 106, fl3 Eng. Com. Law, 362.) But it is equally clear, if goods be sold, and before they are delivered they come into the possession of another who refuses, on demand, to deliver them up, either to the purchaser or seller, that such refusal, on a rescinding of the contract of sale, will enable the vendor to maintain trover. Pattison vs. Robinson and others, 5 Maule and Selwyn’s Rep., 105. In the case just referred to, the person in whose possession the goods were, on demand, informed the parties, “he would not deliver the goods to any person whatsoever,” which, in this particular, is precisely the case now before the court. And in that case, Lord Ellenborough said, that after such a declaration it must be taken, that the defendant meant to give a refusal both to seller and purchaser, so far as they were concerned, and resembled, therefore, the case where a party declares beforehand, that if a tender is made to him he will not accept it, which dispenses with the necessity of a formal tender. He further observed, that he did not think it necessary to inquire whether the declaration of the defendant might not be considered as a continuing conversion, because there was at tlm time, a conversion to the several parties then interested, by a refusal to give effect to their contract; that there was no objection to the title of the one party to sell, and of the other to purchase, and therefore quoad them, the refusal amounted to a conversion. [269] This being so, it is wholly immaterial whether the defendant believed the woman still to be the property of the plaintiff or of the agent who presented the order for her delivery. The manner of his refusal, to use the language of the case we have last referrred to, “ enured for all purposes to the one party and the other” We concur with the county court in the rejection of these prayers. The fourth prayer is disposed of by the same reasoning, for it is but a demurrer to the sufficiency of the evidence to establish a conversion of the property. The third prayer rests upon the ground of waiver, which is deduced from the facts, if the jury should find them, of the plaintiff after the demand endeavoring to take possession of the negro, her escape, and his subsequently offerring a reward for her apprehension. We have already said, that the refusal of the defendant was a conversion from the time it was made. There is no question presented to us in regard to the damages, and therefore the case in 20 Pick., 93, can have no bearing on the matter before the court. In that case, the court however recognized the doctrine, that where goods wrongfully converted are afterwards returned, trover will still lie, though if the goods were returned speedily and in as good plight as when taken, the damages would be merely nominal. The prayer makes no question as to the amount of damages, but goes to defeat the right of action. We think the county court did right in rejecting it. Judgment affirmed.