Schneider v. O. P. R. R.

Bean, J. — The only error complained of here is the entry of a judgment on the verdict of the jury for the value of the 282J cords of wood, found by the jury to have been delivered to defendant by plaintiff. The contention of defendant is, that the allegation in the reply, that on March 11, 1889, plaintiff gave a lien upon this wood to secure the payment of money borrowed by him, is such an admission as will preclude his recovery in this action for the value of such wood. The complaint avers that the wood was delivered along the line of the defendant’s railroad prior to the 22d day 175 of April, 1889, but as the reply alleges that the lien was given on the 11th day of March, we must conclude, as a necessary consequence, that the wood was delivered on or before the date of the lien, so that it must be assumed, for the purposes of this case, that after the wood was delivered along the line of defendant’s road, plaintiff either mortgaged or pledged the wood to Bender for money with which to pay his hands. This action is brought to recover the value of the wood, and not damages for a breach of the contract by defendant. The complaint alleges that the plaintiff delivered the wood at the place provided in the contract for its delivery. In so doing he complied with the contract on his part and was entitled to his pay for the wood at the rate agreed upon. He was not required to allege or prove an acceptance of the wood by the defendant before bringing bis action. (Nichols v. Morse, 100 Mass. 523; Pacific Iron Works v. The Long Island R. R. Co. 62 N. Y. 272.) It appears, however, from the record before us, that after the wood was delivered by plaintiff at the place provided in the contract and agreed on by the parties as the place of delivery, defendant refused to accept or pay for it according to its agreement. Upon the refusal of the defendant to pay for the wood, as it agreed to do, plaintiff had the right to elect to treat the wood as the property of the defendant and sue for the contract price thereof, as he has done here, or otherwise dispose of the wood and bring an action for damages for breach of the contract if he was damaged by such breach; but he could not take possession, sell, or encumber the wood, and sue for the contract price. If he insists on having from the defendant the price at which he contracted to sell the wood, he can not consistently, with such a demand, sell or dispose of it 'to another. In this case he has sued for the value of the wood, and must recover, if at all, upon the theory that the wood belonged to the defendant, and the sale was complete. (McLean v. Dunn, 4 Bing. 772; Miller on Conditional Sales, § 28; Girrard v. Taggart, 5 S. & R. 18; Cook v. Moore, 1 Sand. 297.) If, after he delivered the wood along the rail 176 road track, he saw proper for any reason to resume possession of it or exercise such acts of ownership over it as were inconsistent with a right of property in defendant, he can not recover in this action the value of the wood. When he mortgaged or pledged this wood to Bender to secure a loan of money, he thereby exercised such acts of ownership over it as precludes the idea of property in defendant. If the wood belonged to defendant he could not give a lien upon it, for he had no such interest in the wood as could be subjected to a lien. He could not treat the wood as the property of defendant and at the same time mortgage it to some other person. When he assumed the right to mortgage or pledge the wood to Bender to secure a loan he must have elected to resume control over the wood, and to look to defendant for damages for breach of its contract. He claims that he was compelled to give this lien because defendant would not comply with its contract. In this action it matters not what reason may have prompted him to make his election, whether the importunities of his creditors or the conduct of defendant. The only inquiry is, did he, by his actions, evince an intention to repudiate the sale and resume control of the wood? The conduct of defendant might possibly be a proper subject of inquiry in an action for damages, but the only question before us is the legal effect of the mortgage or pledge of the wood to Bender. The facts are admitted and we must apply the law to them. The plaintiff claims in his reply that the lien to Bender was satisfied and discharged before the commencement of this action, but he does not allege that he delivered the wood to the defendant after the lien was discharged. He says he delivered the wood prior to April 22, 1889, and the action was not commenced until October 14, 1889; so that the lien may have been satisfied prior to the commencement of the action, and yet after the alleged delivery of the wood; but we think it appears from the pleadings, and it was so assumed on the argument here, that the only delivery claimed to have been made was made prior t© the date of the lien. It was argued 177 that the allegation in. the reply is only a departure, and can not be taken advantage of after verdict, but we are unable to concur with counsel in the theory that such allegation is a departure. A departure in pleadings is defined to be where a party quits or departs from the cause of action or defense which he has first made, and has recourse to another. (1 Chitty on PI. 644.) In this case the averment in the reply, that he gave a lien upon this wood to Bender^ does not in any way constitute a cause of action against the defendant, but is an affirmative matter pleaded by plaintiff himself, which is a complete defense to the cause of action set out in his complaint. It follows, therefore, that it was error for the court below to enter judgment against defendant for the value of this wood, and the judgment must be reversed and the cause remanded for further proceedings, as by law provided-